Canadian Employment Equity Act

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Employment Equity Act — CHAPTER E-5.4 (1995, c. 44)
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File : E-5.4.TXT ** Updated to : December 31, 1999 ** ** Note: This consolidation is not an official version of the law. Also, ** because this file is text-only, it does not contain formatting or graphics.
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Employment Equity Act
CHAPTER E-5.4 (1995, c. 44)
[E-5.401] An Act respecting employment equity
[Assented to 15th December, 1995] Her Majesty, by and with the advice and consent of the Senate and House of
Commons of Canada, enacts as follows:
SHORT TITLE
Short title
1. This Act may be cited as the Employment Equity Act.
PURPOSE OF ACT
Purpose of Act
2. 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 fulfilment 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.
INTERPRETATION
Definitions
3. In this Act,
“aboriginal peoples” autochtonesª
“aboriginal peoples” means persons who are Indians, Inuit or Metis;
“Canadian workforce” population apte au travailª
“Canadian workforce” means all persons in Canada of working age who are willing
and able to work;
“Chairperson” presidentª
“Chairperson” means the chairperson of the Canadian Human Rights Tribunal;
“Commission” Commissionª
“Commission” means the Canadian Human Rights Commission established under
section 26 of the Canadian Human Rights Act;
“compliance officer” agent d’applicationª
“compliance officer” means a person designated as an employment equity
compliance review officer pursuant to subsection 22(3);
“designated groups” groupes designesª
“designated groups” means women, aboriginal peoples, persons with disabilities
and members of visible minorities;
“members of visible minorities” minorites visiblesª
“members of visible minorities” means persons, other than aboriginal peoples,
who are non-Caucasian in race or non-white in colour;
“Minister” ministreª
“Minister” means such member of the Queen’s Privy Council for Canada as is
designated by the Governor in Council as the Minister for the purposes of this
Act;
“Panel” [Repealed, 1998, c. 9, s. 37] “persons with disabilities” personnes handicapeesª
“persons with disabilities” means persons who have a long-term or recurring
physical, mental, sensory, psychiatric or learning impairment and who
(a) consider themselves to be disadvantaged in employment by reason of that
impairment, or
(b) believe that a employer or potential employer is likely to consider them to
be disadvantaged in employment by reason of that impairment,
and includes persons whose functional limitations owing to their impairment have
been accommodated in their current job or workplace;
“prescribed” Version anglaise seulement
“prescribed” means prescribed by the regulations;
“private sector employer” employeur du secteur priveª
“private sector employer” means any person who employs one hundred or more
employees on or in connection with a federal work, undertaking or business as
defined in section 2 of the Canada Labour Code and includes any corporation
established to perform any function or duty on behalf of the Government of
Canada that employs one hundred or more employees, but does not include
(a) a person who employs employees on or in connection with a work, undertaking
or business of a local or private nature in the Yukon Territory, the Northwest
Territories or Nunavut, or
(b) a departmental corporation as defined in section 2 of the Financial
Administration Act;
“representatives” representantsª
“representatives” means
(a) those persons who have been designated by employees to act as their
representatives, or
(b) bargaining agents, where bargaining agents represent the employees;
“Tribunal” tribunalª
“Tribunal” means an Employment Equity Review Tribunal established by subsection
28(1).
1993, c. 28, s. 78; 1995, c. 44, s. 3; 1998, c. 9, s. 37, c. 15, s. 25.
APPLICATION
Application
4. (1) This Act applies to
(a) private sector employers;
(b) the portions of the public service of Canada set out in Part I of Schedule I
to the Public Service Staff Relations Act;
(c) the portions of the public service of Canada set out in Part II of Schedule
I to the Public Service Staff Relations Act that employ one hundred or more
employees; and
(d) such other portion of the public sector employing one hundred or more
employees, including the Canadian Forces and the Royal Canadian Mounted Police,
as may be specified by order of the Governor in Council on the recommendation of
the Treasury Board, in consultation with the minister responsible for the
specified portion.
Royal Canadian Mounted Police
(2) For the purposes of this Act,
(a) the Royal Canadian Mounted Police is deemed to consist only of its members
within the meaning of subsection 2(1) of the Royal Canadian Mounted Police Act;
(b) the Royal Canadian Mounted Police is deemed not to be included in Part I of
Schedule I to the Public Service Staff Relations Act; and
(c) civilian employees appointed or employed in accordance with section 10 of
the Royal Canadian Mounted Police Act are deemed to be included in Part I of
Schedule I to the Public Service Staff Relations Act.
Canadian Forces and Royal Canadian Mounted Police
(3) Members of the Canadian Forces and the Royal Canadian Mounted Police are
deemed to be employees for the purposes of this Act.
Responsibilities of Treasury Board and Public Service Commission
(4) The Treasury Board and the Public Service Commission, each acting within the
scope of its powers, duties and functions under the Financial Administration Act
and the Public Service Employment Act, are responsible for carrying out the
obligations of an employer under this Act in relation to employees employed in
those portions of the public service referred to in paragraph (1)(b).
Deemed employer
(5) Every portion of the public sector referred to in paragraphs (1)(c) and (d)
is deemed to be an employer for the purposes of this Act in relation to
employees employed in that portion except that, with respect to any of those
portions for which the Public Service Commission exercises any power or performs
any duty or function under the Public Service Employment Act, the Public Service
Commission and that portion are responsible for carrying out the obligations of
an employer under this Act.
References to employer
(6) In this Act, a reference to an employer is deemed, in relation to those
portions of the public sector referred to in
(a) paragraph (1)(b), to be a reference to the Treasury Board and the Public
Service Commission, each acting within the scope of its powers, duties and
functions under the Financial Administration Act and the Public Service
Employment Act; and
(b) paragraphs (1)(c) and (d) for which the Public Service Commission exercises
any power or performs any duty or function under the Public Service Employment
Act, to be a reference to the employer and the Public Service Commission.
Delegation by Treasury Board and Public Service Commission
(7) The Treasury Board and the Public Service Commission may, for the purpose of
carrying out their obligations under this Act in relation to a portion of the
public service or other portion of the public sector referred to in subsection
(1), authorize the chief executive officer or deputy head concerned to exercise,
in relation to that portion, any of the powers and perform any of the duties and
functions of the Treasury Board or the Public Service Commission, as the case
may be, referred to in this section.
Delegation by chief executive officer or deputy head
(8) Any chief executive officer or deputy head authorized under subsection (7)
to exercise any of the powers and perform any of the duties and functions of the
Treasury Board or Public Service Commission may, subject to and in accordance
with the authorization given to that officer or deputy head, authorize one or
more persons to exercise any of those powers and perform any of those duties and
functions.
PART I
EMPLOYMENT EQUITY
Employer Obligations
Employer’s duty
5. Every employer shall implement employment equity by
(a) identifying and eliminating employment barriers against persons in
designated groups that result from the employer’s employment systems, policies
and practices that are not authorized by law; and
(b) instituting such positive policies and practices and making such reasonable
accommodations as will ensure that persons in designated groups achieve a degree
of representation in each occupational group in the employer’s workforce that
reflects their representation in
(i) the Canadian workforce, or
(ii) those segments of the Canadian workforce that are identifiable by
qualification, eligibility or geography and from which the employer may
reasonably be expected to draw employees.
Employer not required to take certain measures
6. The obligation to implement employment equity does not require an employer
(a) to take a particular measure to implement employment equity where the taking
of that measure would cause undue hardship to the employer;
(b) to hire or promote unqualified persons;
(c) with respect to the public sector, to hire or promote persons without basing
the hiring or promotion on selection according to merit in cases where the
Public Service Employment Act requires that hiring or promotion be based on
selection according to merit; or
(d) to create new positions in its workforce.
Employment of aboriginal peoples
7. Notwithstanding any other provision of this Act, where a private sector
employer is engaged primarily in promoting or serving the interests of
aboriginal peoples, the employer may give preference in employment to aboriginal
peoples or employ only aboriginal peoples, unless that preference or employment
would constitute a discriminatory practice under the Canadian Human Rights Act.
Certain rights not employment barriers
8. (1) Employee seniority rights with respect to a layoff or recall under a
collective agreement or pursuant to the established practices of an employer are
deemed not to be employment barriers within the meaning of this Act.
Other seniority rights
(2) Unless they are found to constitute a discriminatory practice under the
Canadian Human Rights Act, employee seniority rights other than those referred
to in subsection (1), including rights acquired under workforce adjustment
policies implemented when an employer is downsizing or restructuring, under a
collective agreement or pursuant to an established practice, are deemed not to
be employment barriers within the meaning of this Act.
Adverse impact on employment opportunities
(3) Notwithstanding subsections (1) and (2), where, after a review under
paragraph 9(1)(b), it appears that a right referred to in either of those
subsections that is provided for under a collective agreement may have an
adverse impact on the employment opportunities of persons in designated groups,
the employer and its employees’ representatives shall consult with each other
concerning measures that may be taken to minimize the adverse impact.
Public sector
(4) The following are not, in relation to the public sector, employment barriers
within the meaning of the Act, namely,
(a) priorities for appointment under the Public Service Employment Act or
regulations made by the Public Service Commission; and
(b) workforce adjustment measures established by the Treasury Board, including
measures set out in the Workforce Adjustment Directive, or by the Public Service
Commission or any other portion of the public sector referred to in paragraphs
4(1)(c) and (d).
Analysis and review
9. (1) For the purpose of implementing employment equity, every employer shall
(a) collect information and conduct an analysis of the employer’s workforce, in
accordance with the regulations, in order to determine the degree of the
underrepresentation of persons in designated groups in each occupational group
in that workforce; and
(b) conduct a review of the employer’s employment systems, policies and
practices, in accordance with the regulations, in order to identify employment
barriers against persons in designated groups that result from those systems,
policies and practices.
Self-identification
(2) Only those employees who identify themselves to an employer, or agree to be
identified by an employer, as aboriginal peoples, members of visible minorities
or persons with disabilities are to be counted as members of those designated
groups for the purposes of implementing employment equity.
Confidentiality of information
(3) Information collected by an employer under paragraph (1)(a) is confidential
and shall be used only for the purpose of implementing the employer’s
obligations under this Act.
Employment equity plan
10. (1) The employer shall prepare an employment equity plan that
(a) specifies the positive policies and practices that are to be instituted by
the employer in the short term for the hiring, training, promotion and retention
of persons in designated groups and for the making of reasonable accommodations
for those persons, to correct the underrepresentation of those persons
identified by the analysis under paragraph 9(1)(a);
(b) specifies the measures to be taken by the employer in the short term for the
elimination of any employment barriers identified by the review under paragraph
9(1)(b);
(c) establishes a timetable for the implementation of the matters referred to in
paragraphs (a) and (b);
(d) where underrepresentation has been identified by the analysis, establishes
short term numerical goals for the hiring and promotion of persons in designated
groups in order to increase their representation in each occupational group in
the workforce in which underrepresentation has been identified and sets out
measures to be taken in each year to meet those goals;
(e) sets out the employer’s longer term goals for increasing the representation
of persons in designated groups in the employer’s workforce and the employer’s
strategy for achieving those goals; and
(f) provides for any other matter that may be prescribed.
Establishment of numerical goals
(2) In establishing the short term numerical goals referred to in paragraph
(1)(d), every employer shall consider
(a) the degree of underrepresentation of persons in each designated group in
each occupational group within the employer’s workforce;
(b) the availability of qualified persons in designated groups within the
employer’s workforce and in the Canadian workforce;
(c) the anticipated growth or reduction of the employer’s workforce during the
period in respect of which the numerical goals apply;
(d) the anticipated turnover of employees within the employer’s workforce during
the period in respect of which the numerical goals apply; and
(e) any other factor that may be prescribed.
Definitions
(3) In this section, “short term” means a period of not less than one year and
not more than three years, and “longer term” means a period of more than three
years.
Reasonable progress
11. Every employer shall ensure that its employment equity plan would, if
implemented, constitute reasonable progress toward implementing employment
equity as required by this Act.
Implementation and monitoring of plan
12. Every employer shall
(a) make all reasonable efforts to implement its employment equity plan; and
(b) monitor implementation of its plan on a regular basis to assess whether
reasonable progress toward implementing employment equity is being made.
Periodic review and revision of plan
13. Every employer shall, at least once during the period in respect of which
the short term numerical goals referred to in paragraph 10(1)(d) are
established, review its employment equity plan and revise it by
(a) updating the numerical goals, taking into account the factors referred to in
subsection 10(2); and
(b) making any other changes that are necessary as a result of an assessment
made pursuant to paragraph 12(b) or as a result of changing circumstances.
Information about employment equity
14. Every employer shall provide information to its employees explaining the
purpose of employment equity and shall keep its employees informed about
measures the employer has undertaken or is planning to undertake to implement
employment equity and the progress the employer has made in implementing
employment equity.
Consultation with employee representatives
15. (1) Every employer shall consult with its employees’ representatives by
inviting the representatives to provide their views concerning
(a) the assistance that the representatives could provide to the employer to
facilitate the implementation of employment equity in its workplace and the
communication to its employees of matters relating to employment equity; and
(b) the preparation, implementation and revision of the employer’s employment
equity plan.
Where employees represented by bargaining agents
(2) Where employees are represented by a bargaining agent, the bargaining agent
shall participate in a consultation under subsection (1).
Collaboration
(3) Every employer and its employees’ representatives shall collaborate in the
preparation, implementation and revision of the employer’s employment equity
plan.
Rule of interpretation
(4) Consultation under subsection (1) and collaboration under subsection (3) are
not forms of co-management.
New employers
16. (1) A person who becomes an employer after the day on which this section
comes into force shall, within eighteen months after becoming an employer,
comply with sections 9 and 10.
Compliance audit
(2) The Commission may not conduct a compliance audit of the discharge of the
obligations of a person referred to in subsection (1) within two years after the
day on which that person becomes an employer.
Records and Reports
Employment equity records
17. Every employer shall, in accordance with the regulations, establish and
maintain employment equity records in respect of the employer’s workforce, the
employer’s employment equity plan and the implementation of employment equity by
the employer.
Reports of private sector employers
18. (1) Every private sector employer shall, on or before June 1 in each year,
file with the Minister a report in respect of the immediately preceding calendar
year containing information in accordance with prescribed instructions,
indicating, in the prescribed manner and form,
(a) the industrial sector in which its employees are employed, the location of
the employer and its employees, the number of its employees and the number of
those employees who are members of designated groups;
(b) the occupational groups in which its employees are employed and the degree
of representation of persons who are members of designated groups in each
occupational group;
(c) the salary ranges of its employees and the degree of representation of
persons who are members of designated groups in each range and in each
prescribed subdivision of the range; and
(d) the number of its employees hired, promoted and terminated and the degree of
representation in those numbers of persons who are members of designated groups.
Interpretation
(2) For the purposes of subsection (1), an employer is the person who or
organization that was the employer on December 31 in the immediately preceding
year.
Electronic filing
(3) An employer may file a report using electronic media in a manner specified
in writing by the Minister and, in such a case, the report is deemed to have
been filed on the day that the Minister acknowledges receipt of it.
Self-identification
(4) Only those employees who identify themselves to their employer, or agree to
be identified by their employer, as aboriginal peoples, members of visible
minorities and persons with disabilities are to be counted as members of those
designated groups for the purposes of the report.
Certificate required
(5) A report shall be certified, in the prescribed manner, as to the accuracy of
the information contained in it and shall be signed by the employer or, where
the employer is a corporation, by a prescribed person on behalf of the
corporation.
Additional information
(6) An employer shall include in a report a description of
(a) the measures taken by the employer during the reporting period to implement
employment equity and the results achieved; and
(b) the consultations between the employer and its employees’ representatives
during the reporting period concerning the implementation of employment equity.
Consolidated reports
(7) Where, in the opinion of the Minister, associated or related federal works,
undertakings or businesses are operated by two or more employers having common
control or direction, the Minister may, on the application of the employers,
authorize them to file a consolidated report with respect to employees employed
by them on or in connection with those works, undertakings or businesses.
Exemption for private sector employers
(8) The Minister may, on the application of an employer, exempt the employer
from any or all of the requirements of this section for a period not exceeding
one year if, in the opinion of the Minister, special circumstances warrant the
exemption.
Copy to employees’ representatives
(9) An employer shall, on filing a report with the Minister under this section,
provide its employees’ representatives with a copy of the report.
Copy to Commission
(10) The Minister shall, on receipt of a report, send a copy of it to the
Commission.
Availability of reports of private sector employers
19. (1) Subject to subsection (2), every report filed under subsection 18(1)
shall be available for public inspection at such places as may be designated,
and in such form as may be determined, by the Minister, and any person may, on
payment of a prescribed fee, not to exceed the costs of furnishing a copy,
obtain from the Minister a copy of any of the reports.
Withholding of report
(2) The Minister may, on the application of an employer, withhold the employer’s
report from public inspection for a period not exceeding one year if, in the
opinion of the Minister, special circumstances warrant the withholding.
Consolidation to be tabled
20. The Minister shall in each year prepare a report consisting of a
consolidation of the reports filed under subsection 18(1) together with an
analysis of those reports and shall cause the report to be laid before each
House of Parliament not later than the fifteenth sitting day that that House of
Parliament is sitting after the report is completed.
Report of Treasury Board
21. (1) The President of the Treasury Board shall, in each fiscal year, cause to
be laid before each House of Parliament a report in respect of the state of
employment equity in the portions of the public service referred to in paragraph
4(1)(b) during the immediately preceding fiscal year.
Contents of report
(2) The report referred to in subsection (1) shall consist of
(a) a consolidation and analysis of
(i) the number of employees employed in each portion of the public service
referred to in paragraph 4(1)(b) and the number of persons who are members of
each designated group so employed,
(ii) the total number of employees employed in all portions of the public
service referred to in paragraph 4(1)(b) in each province and in the National
Capital Region and the number of persons who are members of each designated
group so employed,
(iii) the occupational groups of employees and the degree of representation of
persons who are members of each designated group in each occupational group,
(iv) the salary ranges of employees and the degree of representation of persons
who are members of each designated group in each range and in any subdivision of
the range, and
(v) the numbers of employees hired, promoted and terminated and the degree of
representation, in those numbers, of persons who are members of each designated
group;
(b) a description of the principal measures taken by the Treasury Board during
the reporting period to implement employment equity and the results achieved;
(c) a description of the consultations between the Treasury Board and its
employees’ representatives during the reporting period concerning the
implementation of employment equity; and
(d) any other information that the President of the Treasury Board considers
relevant.
Requirement to provide information
(3) Each portion of the public sector referred to in paragraphs 4(1)(c) and (d),
other than the Canadian Security Intelligence Service, shall, within six months
after the end of each fiscal year, provide to the President of the Treasury
Board a report containing the information referred to in subsection (4) in
relation to that portion during that fiscal year and the President shall cause
the reports, together with the report referred to in subsection (1), to be laid
before each House of Parliament.
Contents of report
(4) A report referred to in subsection (3) shall consist of
(a) the information referred to in subparagraphs (2)(a)(i) to (v) in relation to
that portion;
(b) an analysis of the information referred to in paragraph (a); and
(c) the information referred to in paragraphs (2)(b) to (d) in relation to that
portion.
Requirement to provide information
(5) The Canadian Security Intelligence Service shall, within six months after
the end of each fiscal year, provide to the President of the Treasury Board a
report containing the information referred to in subsection (6) in relation to
that portion during that fiscal year and the President shall cause the report,
together with the report referred to in subsection (1), to be laid before each
House of Parliament.
Contents of report
(6) A report referred to in subsection (5) shall consist of
(a) the percentage of employees employed in that portion who are members of each
designated group;
(b) the occupational groups of employees in that portion and the percentage of
persons who are members of each designated group in each occupational group;
(c) the salary ranges of employees in that portion and the percentage of persons
who are members of each designated group in each range and in any subdivision of
the range;
(d) the percentage of employees hired, promoted and terminated in that portion
who are members of each designated group;
(e) an analysis of the information referred to in paragraphs (a) to (d); and
(f) the information referred to in paragraphs (2)(b) to (d) in relation to that
portion.
Copy to Commission
(7) The President of the Treasury Board shall, as soon as possible after a
report referred to in any of subsections (1), (3) and (5) is laid before each
House of Parliament, send a copy of the report to the Commission.
Copies to employees’ representatives
(8) As soon as possible after a report referred to in this section is laid
before each House of Parliament,
(a) in the case of a report referred to in subsection (1), the President of the
Treasury Board,
(b) in the case of a report referred to in subsection (3), each portion of the
public sector referred to in that subsection, and
(c) in the case of a report referred to in subsection (5), the Canadian Security
Intelligence Service,
shall send a copy of the report to its employees’ representatives.
PART II
COMPLIANCE
Compliance Audits
Compliance audits
22. (1) The Commission is responsible for the enforcement of the obligations
imposed on employers by sections 5, 9 to 15 and 17.
Guiding policy
(2) The Commission shall, in discharging its responsibility under subsection
(1), be guided by the policy that, wherever possible, cases of non-compliance be
resolved through persuasion and the negotiation of written undertakings pursuant
to subsection 25(1) and that directions be issued under subsection 25(2) or (3)
and applications for orders be made under subsection 27(2) only as a last
resort.
Compliance officers designated
(3) The Commission may designate any person or category of persons as employment
equity compliance review officers for the purposes of conducting compliance
audits of employers.
Where compliance officer may not act
(4) No person who has been designated as an investigator under section 43 of the
Canadian Human Rights Act to investigate a complaint under that Act in respect
of an employer may, during the investigation, conduct a compliance audit of that
employer.
Delegation by Commission
(5) The Commission may authorize any officer or employee of the Commission whom
the Commission considers appropriate to exercise any power and perform any duty
or function of the Commission under this Act and any power so exercised and any
duty or function so performed shall be deemed to have been exercised or
performed by the Commission.
Powers of compliance officers
23. (1) For the purposes of ensuring compliance with the provisions referred to
in subsection 22(1), a compliance officer may conduct a compliance audit of an
employer and, for that purpose, may
(a) at any reasonable time, enter any place in which the officer believes on
reasonable grounds there is any thing relevant to the enforcement of any of
those provisions; and
(b) require any person to produce for examination or copying any record, book of
account or other document that the officer believes on reasonable grounds
contains information that is relevant to the enforcement of any of those
provisions.
Data processing systems and copying equipment
(2) In conducting a compliance audit, a compliance officer may
(a) reproduce or cause to be reproduced any record from a data processing system
in the form of a print-out or other intelligible output and remove the print-out
or other output for examination and copying; and
(b) use or cause to be used any copying equipment at the place to make copies of
any record, book of account or other document.
Certificate to be produced
(3) Compliance officers shall be furnished with certificates in a form
established by the Commission certifying their designation as compliance
officers and, on entering a place under paragraph (1)(a), a compliance officer
shall show the certificate to the person in charge of the place if the person
requests proof of the officer’s designation.
Assistance to compliance officers
(4) The person in charge of a place entered pursuant to paragraph (1)(a) and
every person found in the place shall
(a) give the compliance officer all reasonable assistance to enable the officer
to exercise the powers conferred on compliance officers by this section; and
(b) provide the officer with any information relevant to the enforcement of this
Act that the officer may reasonably require.
Security requirements
24. Every compliance officer or any other person acting on behalf of or under
the direction of the Commission who receives or obtains information relating to
a compliance audit under this Act shall, with respect to access to and use of
that information by that compliance officer or person, satisfy any security
requirements applicable to, and take any oath of secrecy required to be taken
by, persons who normally have access to and use of that information.
Undertakings and Directions
Employer undertaking
25. (1) Where a compliance officer is of the opinion that an employer
(a) has not collected information or conducted an analysis referred to in
paragraph 9(1)(a) or conducted a review referred to in paragraph 9(1)(b),
(b) has not prepared an employment equity plan referred to in section 10,
(c) has prepared an employment equity plan that does not meet the requirements
of sections 10 and 11,
(d) has not made all reasonable efforts to implement its employment equity plan
in accordance with section 12,
(e) has failed to review and revise its employment equity plan in accordance
with section 13,
(f) has failed to provide information to its employees in accordance with
section 14,
(g) has failed to consult with its employees’ representatives in accordance with
section 15, or
(h) has failed to establish and maintain employment equity records as required
by section 17,
the compliance officer shall inform the employer of the non-compliance and shall
attempt to negotiate a written undertaking from the employer to take specified
measures to remedy the non-compliance.
Information re underrepresentation
(1.1) Where
(a) an employer has been informed of a non-compliance by a compliance officer
under subsection (1) and the finding of non-compliance is based, in whole or in
part, on the apparent underrepresentation of aboriginal peoples, members of
visible minorities or persons with disabilities in the employer’s work force, as
reflected in the employer’s work force analysis conducted pursuant to paragraph
9(1)(a), and
(b) the employer believes that the apparent underrepresentation is attributable
to the decision of employees who may be members of the designated groups
concerned not to identify themselves as such or not to agree to be identified by
the employer as such under subsection 9(2),
the employer may inform the compliance officer of such belief.
Reason for underrepresentation to be considered
(1.2) Where the employer satisfies the compliance officer that the finding of
non-compliance is attributable, in whole or in part, to the reason described in
paragraph (1.1)(b) and that the employer has made all reasonable efforts to
implement employment equity, the compliance officer shall take the reason into
account in exercising any powers under this section.
No employer identification of individual employees
(1.3) In satisfying the compliance officer under subsection (1.2) that the
finding of non-compliance is attributable, in whole or in part, to the reason
mentioned in paragraph (1.1)(b), the employer must do so by means other than the
identification of individual employees in its work force that the employer
believes are members of designated groups who have not identified themselves as
such, or agreed to be identified by the employer as such, under subsection 9(2).
Direction
(2) Where a compliance officer fails to obtain a written undertaking that, in
the opinion of the compliance officer, would be sufficient to remedy the
non-compliance, the compliance officer shall notify the Commission of the
non-compliance and the Commission may issue and send, by registered mail, a
direction to the employer
(a) setting out the facts on which the officer’s finding of non-compliance is
based; and
(b) requiring the employer to take such actions as are specified in the
direction to remedy the non-compliance.
Breach of undertaking
(3) Where a compliance officer obtains a written undertaking and the compliance
officer is of the opinion that the employer has breached the undertaking, the
compliance officer shall notify the Commission of the non-compliance and the
Commission may issue and send, by registered mail, a direction to the employer
requiring the employer to take such actions as are specified in the direction to
remedy the non-compliance.
Amendment of direction
(4) The Commission may rescind or amend a direction issued by the Commission
pursuant to subsection (2) or (3) on the presentation of new facts or on being
satisfied that the direction was issued without knowledge of, or was based on a
mistake as to, a material fact.
Direction of Commission
26. (1) Where a compliance officer is of the opinion that an employer has failed
to give reasonable assistance or to provide information as required by
subsection 23(4), the compliance officer shall notify the Commission of the
non-compliance and the Commission may issue and send, by registered mail, a
direction to the employer
(a) setting out the facts on which the officer’s finding of non-compliance is
based; and
(b) requiring the employer to take such actions as are specified in the
direction to remedy the non-compliance.
Amendment of direction
(2) The Commission may rescind or amend a direction issued pursuant to
subsection (1) on the presentation of new facts or on being satisfied that the
direction was issued without knowledge of, or was based on a mistake as to, a
material fact.
Requests for Review or Order
Employer’s request for review
27. (1) An employer to whom a direction is issued under subsection 25(2) or (3)
or 26(1) may make a request to the Chairperson for a review of the direction
(a) in the case of a direction issued under subsection 25(2) or (3), within
sixty days after the day on which it is issued; and
(b) in the case of a direction issued under subsection 26(1), within thirty days
after the day on which it is issued.
Commission may apply
(2) If the Commission is of the opinion that an employer has failed to comply
with a direction issued by the Commission, the Commission may apply to the
Chairperson for an order confirming the direction.
Limitation
(3) No application may be made pursuant to subsection (2) where the employer has
requested a review in accordance with subsection (1).
1995, c. 44, s. 27; 1998, c. 9, s. 38.
Employment Equity Review Tribunals
Establishment of Tribunals
28. (1) If an employer makes a request under subsection 27(1) or the Commission
makes an application under subsection 27(2), the Chairperson shall establish an
Employment Equity Review Tribunal to consider the request or application.
Composition
(2) The Chairperson shall appoint a Tribunal consisting of one member of the
Canadian Human Rights Tribunal, but the Chairperson may appoint a Tribunal of
three members if the Chairperson considers that the complexity or precedential
significance of the request or application requires a Tribunal of three members.
Qualifications of members
(3) The Chairperson shall, in appointing members of the Tribunal, take into
consideration their knowledge and experience in employment equity matters.
Presiding
(4) If a Tribunal consists of more than one member, the Chairperson shall
designate one of the members to preside over the hearings of the Tribunal.
Acting after expiration of appointment
(4.1) A member whose appointment expires may, with the approval of the
Chairperson, conclude any hearing that the member has begun, and a person
performing duties under this section is deemed to be a part-time member for the
purposes of section 48.3 of the Canadian Human Rights Act.
Remuneration
(5) The members of a Tribunal shall be paid such remuneration as may be provided
for under subsection 48.6(1) of the Canadian Human Rights Act.
Travel expenses
(6) Members are entitled to be paid any travel and living expenses incurred in
carrying out duties as members of the Tribunal while absent from their ordinary
place of residence that may be provided for under subsection 48.6(2) of the
Canadian Human Rights Act.
Technical experts
(7) The Chairperson may engage and, subject to the approval of the Treasury
Board, fix the remuneration of persons having technical or special knowledge to
assist or advise a Tribunal in any matter.
Government services and facilities
(8) In performing its duties and functions, a Tribunal shall, where available,
make use of the services and facilities of departments, boards and agencies of
the Government of Canada.
Rules
(9) The Chairperson may make rules governing the practice and procedure of
Tribunals.
Security requirements
(10) Every member or other person acting on behalf of or under the direction of
a Tribunal who receives or obtains information relating to a request or
application referred to in subsection (1) shall, with respect to access to and
use of that information by that member or other person, satisfy any security
requirements applicable to, and take any oath of secrecy required to be taken
by, persons who normally have access to and use of that information.
1995, c. 44, s. 28; 1998, c. 9, s. 39.
Powers of Tribunal
29. (1) A Tribunal may
(a) in the same manner and to the same extent as a superior court of record,
summon and enforce the attendance of witnesses and compel them to give oral and
written evidence on oath and to produce such documents and things as the
Tribunal considers necessary for a full review;
(b) administer oaths; and
(c) receive and accept such evidence and other information, whether on oath or
by affidavit or otherwise, as the Tribunal sees fit, whether or not that
evidence or information would be admissible in a court of law.
How matters to be dealt with
(2) A Tribunal shall conduct any matter that comes before it as informally and
expeditiously as the circumstances and considerations of fairness and natural
justice permit.
Hearings to be public
(3) Subject to subsection (4), a hearing before a Tribunal shall be conducted in
public.
Hearings may be in camera
(4) A hearing before a Tribunal may, on the request of an employer, be held in
camera if the employer establishes to the satisfaction of the Tribunal that the
circumstances of the case so require.
Reasons for decision
(5) A Tribunal shall provide the parties to a proceeding before the Tribunal
with written reasons for its decision.
Reasons for decision
(6) A Tribunal shall, on request by any person, provide the person with a copy
of any decision of the Tribunal, including a decision under subsection (4) to
hold a hearing in camera, together with the written reasons for the decision.
Decision of Tribunal
30. (1) A Tribunal may, after hearing a request made under subsection 27(1) or
an application made under subsection 27(2),
(a) by order, confirm, vary or rescind the Commission’s direction; and
(b) make any other order it considers appropriate and reasonable in the
circumstances to remedy the non-compliance.
Board may vary or rescind
(2) A Tribunal may vary or rescind any order made by it.
Orders are final
(3) An order of a Tribunal is final and, except for judicial review under the
Federal Court Act, is not subject to appeal or review by any court.
Enforcement of orders
31. (1) Any order of a Tribunal made under section 30 may, for the purposes of
its enforcement, be made an order of the Federal Court and is enforceable in the
same manner as an order of that Court.
Procedure
(2) To make an order of a Tribunal an order of the Federal Court, the usual
practice and procedure of the Court may be followed or a certified copy of the
order may be filed with the registrar of the Court, and from the time of filing
the order becomes an order of the Court.
Report of activities of Human Rights Commission
32. The Commission shall include in its annual report referred to in section 61
of the Canadian Human Rights Act a report of its activities, including an
assessment of their effectiveness, under this Act during the year.
Limitations respecting Directions and Orders
Limitation
33. (1) The Commission may not give a direction under section 25 or 26 and no
Tribunal may make an order under section 30 where that direction or order would
(a) cause undue hardship on an employer;
(b) require an employer to hire or promote unqualified persons;
(c) with respect to the public sector, require an employer to hire or promote
persons without basing the hiring or promotion on selection according to merit
in cases where the Public Service Employment Act requires that hiring or
promotion be based on selection according to merit, or impose on the Public
Service Commission an obligation to exercise its discretion regarding exclusion
orders or regulations;
(d) require an employer to create new positions in its workforce;
(e) impose a quota on an employer; or
(f) in the case of a direction or order respecting the establishment of short
term numerical goals, fail to take into account the factors set out in
subsection 10(2).
Meaning of “quota”
(2) In paragraph (1)(e), “quota” means a requirement to hire or promote a fixed
and arbitrary number of persons during a given period.
Public sector
(3) In making a direction or order that applies to the public sector, the
Commission, in the case of a direction, and a Tribunal, in the case of an order,
shall take into account the respective roles and responsibilities of
(a) the Public Service Commission and the Treasury Board under the Public
Service Employment Act and the Financial Administration Act; or
(b) a portion of the public sector referred to in paragraph 4(1)(c) or (d) under
any other Act of Parliament.
Privileged Information
Privileged information
34. (1) Information obtained by the Commission under this Act is privileged and
shall not knowingly be, or be permitted to be, communicated, disclosed or made
available without the written consent of the person from whom it was obtained.
Evidence and production of documents
(2) No member of the Commission or person employed by it who obtains information
that is privileged under subsection (1) shall be required, in connection with
any legal proceedings, other than proceedings relating to the administration or
enforcement of this Act, to give evidence relating to that information or to
produce any statement or other writing containing that information.
Communication or disclosure of information
(3) Information that is privileged under subsection (1) may, on any terms and
conditions that the Commission considers appropriate, be communicated or
disclosed to a minister of the Crown in right of Canada or to any officer or
employee of Her Majesty in right of Canada for any purpose relating to the
administration or enforcement of this Act.
Exception
(4) Nothing in this section prohibits the communication or disclosure of
information for the purposes of legal proceedings relating to the administration
or enforcement of this Act.
Employer’s consent required
(5) No information obtained by the Commission or a Tribunal under this Act may
be used in any proceedings under any other Act without the consent of the
employer concerned.
PART III
ASSESSMENT OF MONETARY PENALTIES
Violations
Violation
35. (1) Every private sector employer commits a violation of this Act who
(a) without reasonable excuse, fails to file an employment equity report as
required by section 18;
(b) without reasonable excuse, fails to include in the employment equity report
any information that is required, by section 18 and the regulations, to be
included; or
(c) provides any information in the employment equity report that the employer
knows to be false or misleading.
Continuing violations
(2) A violation that is committed or continued on more than one day constitutes
a separate violation for each day on which it is committed or continued.
Violations not offences
(3) A violation is not an offence and accordingly the Criminal Code does not
apply in respect of a violation.
Assessment of monetary penalty
36. (1) The Minister may, within two years after the day on which the Minister
becomes aware of a violation, issue a notice of assessment of a monetary penalty
in respect of the violation and send it by registered mail to the private sector
employer.
Limit
(2) The amount of a monetary penalty shall not exceed
(a)$10,000 for a single violation; and
(b)$50,000 for repeated or continued violations.
Factors to be considered
(3) In assessing the amount of a monetary penalty, the Minister shall take into
account
(a) the nature, circumstances, extent and gravity of the violation; and
(b) the wilfulness or intent of the private sector employer and the employer’s
history of prior violations.
Notice of assessment of monetary penalty
37. A notice of the assessment of a monetary penalty shall
(a) identify the alleged violation;
(b) specify the amount of the monetary penalty; and
(c) specify the place where the employer may pay the monetary penalty.
Options
Employer’s options
38. (1) An employer may, not later than thirty days after receiving a notice of
assessment of a monetary penalty,
(a) comply with the notice; or
(b) contest the assessment of the monetary penalty by making a written
application to the Minister for a review, by a Tribunal, of that assessment.
Copy of application
(2) If the Minister receives a written application, the Minister shall send a
copy of it to the Chairperson.
Copy of notice of assessment
(3) If an employer who is issued a notice of assessment of a monetary penalty
fails to exercise one of the options set out in subsection (1) within the period
referred to in that subsection, the Minister shall send a copy of the notice to
the Chairperson.
1995, c. 44, s. 38; 1998, c. 9, s. 40.
Review by Tribunal
39. (1) On receipt of a copy of a written application or a copy of a notice of
assessment, the Chairperson shall establish a Tribunal consisting of one member
selected from the Canadian Human Rights Tribunal to review the assessment and
shall
(a) send, by registered mail, a request that the employer appear before the
Tribunal at the time and place set out in the request to hear the allegations
against the employer in respect of the alleged violation; and
(b) in writing, advise the Minister who issued the notice of assessment of the
time and place set out in the request.
Failure to appear before Tribunal
(2) Where an employer to whom a request is sent fails to appear before a
Tribunal at the time and place set out in the request, the Tribunal shall
consider all the information that is presented to it by the Minister in relation
to the alleged violation.
Opportunity to make representations
(3) In conducting its review, a Tribunal shall provide the Minister and the
employer with a full opportunity consistent with procedural fairness and natural
justice to present evidence and make representations to it with respect to the
alleged violation.
Determination of Tribunal
(4) Where at the conclusion of its proceedings a Tribunal determines that the
employer
(a) has not committed the alleged violation, the Tribunal shall immediately
inform the employer and the Minister of its determination and no further
proceedings shall be taken against the employer in respect of the alleged
violation; or
(b) has committed the alleged violation, the Tribunal shall immediately
(i) issue to the Minister a certificate, in the prescribed form, of its
determination that sets out an amount, not exceeding the applicable amount set
out in subsection 36(2), determined by the Tribunal to be payable by the
employer in respect of the violation, and
(ii) send a copy of the certificate to the employer by registered mail.
Factors to be considered
(5) In determining an amount under subparagraph (4)(b)(i), a Tribunal shall take
into account the factors set out in subsection 36(3).
Burden of proof
(6) In proceedings under this section, the Minister has the burden of proving,
on a balance of probabilities, that an employer has committed the alleged
violation.
Certificate
(7) A certificate that purports to have been issued by a Tribunal under
subparagraph (4)(b)(i) is evidence of the facts stated in the certificate,
without proof of the signature or official character of the person appearing to
have signed the certificate.
Determinations are final
(8) A determination of a Tribunal under this section is final and, except for
judicial review under the Federal Court Act, is not subject to appeal or review
by any court.
1995, c. 44, s. 39; 1998, c. 9, s. 41.
Enforcement of Monetary Penalties
Registration of certificate
40. (1) A certificate issued under subparagraph 39(4)(b)(i) may be registered in
the Federal Court and when registered has the same force and effect, and all
proceedings may be taken on the certificate, as if the certificate were a
judgment in that Court obtained by Her Majesty in right of Canada against the
employer named in the certificate for a debt in the amount set out in the
certificate.
Recovery of costs and charges
(2) All reasonable costs and charges associated with registration of the
certificate are recoverable in like manner as if they were part of the amount
determined by the Tribunal under subparagraph 39(4)(b)(i).
PART IV
GENERAL
Regulations
41. (1) The Governor in Council may make regulations
(a) defining, for the purposes of the Act, the expressions “employee”, “hired”,
“occupational group”, “promoted”, “salary” and “terminated”;
(b) prescribing the manner of calculating the number of employees employed by an
employer for the purpose of determining when an employer is considered to employ
one hundred or more employees;
(c) governing the collection of information and the conduct of analyses referred
to in paragraph 9(1)(a) and the conduct of reviews referred to in paragraph
9(1)(b);
(d) governing the establishment and maintenance of employment equity records
referred to in section 17;
(e) prescribing anything that is to be prescribed by this Act; and
(f) generally, for carrying out the purposes and provisions of this Act.
Application
(2) A regulation made pursuant to subsection (1) may be of general application
or may apply to a particular employer or group of employers.
Where regulations apply to public sector
(3) No regulation may be made under subsection (1) that applies to the public
sector without prior consultation with the Treasury Board.
Inconsistent meanings
(4) No expression defined pursuant to paragraph (1)(a) that applies to the
public sector shall be given a meaning that is inconsistent with the meaning
that that expression or any similar expression is given under the Public Service
Employment Act.
Adaptation of Act to certain portions
(5) The Governor in Council may, taking into account the operational
effectiveness of the appropriate portion of the public sector referred to in
paragraph (a) or (b), make any regulation that the Governor in Council considers
necessary to adapt this Act or the regulations or any provision of this Act or
the regulations to accommodate
(a) the Canadian Security Intelligence Service; or
(b) where an order is made under paragraph 4(1)(d) in relation to the Canadian
Forces or the Royal Canadian Mounted Police, the Canadian Forces or the Royal
Canadian Mounted Police.
Requirements
(6) A regulation made under subsection (5) shall be made on the recommendation
of the Treasury Board after consultation with
(a) in the case of a regulation respecting the Canadian Security Intelligence
Service, or the Royal Canadian Mounted Police, the Solicitor General; and
(b) in the case of a regulation respecting the Canadian Forces, the Minister of
National Defence.
Requirements may differ
(7) The effect of a regulation made under subsection (5) with respect to any
matter may differ from the effect of the Act or the regulations or of any
provision of the Act or the regulations with respect to that matter.
Powers, duties and functions of Minister
42. (1) The Minister is responsible for
(a) developing and conducting information programs to foster public
understanding of this Act and to foster public recognition of the purpose of
this Act;
(b) undertaking research related to the purpose of this Act;
(c) promoting, by any means that the Minister considers appropriate, the purpose
of this Act;
(d) publishing and disseminating information, issuing guidelines and providing
advice to private sector employers and employee representatives regarding the
implementation of employment equity; and
(e) developing and conducting programs to recognize private sector employers for
outstanding achievement in implementing employment equity.
Federal Contractors Program
(2) The Minister is responsible for the administration of the Federal
Contractors Program for Employment Equity and shall, in discharging that
responsibility, ensure that the requirements of that Program with respect to the
implementation of employment equity by contractors to whom the Program applies
are equivalent to the requirements with respect to the implementation of
employment equity by an employer under this Act.
Labour market information
(3) The Minister shall make available to employers any relevant labour market
information that the Minister has respecting designated groups in the Canadian
workforce in order to assist employers in fulfilling their obligations under
this Act.
Delegation
43. The Minister may authorize those persons employed in the public service of
Canada whom the Minister considers to be appropriate to exercise any of the
powers and perform any of the duties and functions that may be or are required
to be exercised or performed by the Minister under this Act or the regulations,
and any power exercised or duty or function performed by any person so
authorized shall be deemed to have been exercised or performed by the Minister.
Review of operation of Act
44. (1) Five years after the coming into force of this Act, and at the end of
every five year period thereafter, a comprehensive review of the provisions and
operation of this Act including the effect of those provisions shall be
undertaken by such committee of the House of Commons as may be designated or
established by the House for that purpose.
Tabling of report
(2) A committee shall, within six months after the completion of a review
referred to in subsection (1), submit a report on its review to the House of
Commons including a statement of any changes the committee would recommend.
TRANSITIONAL PROVISION
Compliance with certain provisions
45. The Treasury Board, the Public Service Commission and any person who is an
employer to whom the Employment Equity Act, R.S., c. 23 (2nd Supp.), applied
shall, within one year after the coming into force of this section, comply with
sections 9 and 10 of this Act.
CONSEQUENTIAL AMENDMENTS
46. to 53. [Amendments] REPEAL
54. [Repeal] COMING INTO FORCE
Coming into force
*55. This Act or any provision of this Act comes into force on a day or days to
be fixed by order of the Governor in Council.
*[Note: Act in force October 24, 1996, see SI/96-93.] RELATED PROVISIONS
– 1998, c. 9, s. 33:
Definition of “commencement day”
33. (1) In this section, “commencement day” means the day on which this section
comes into force.
Members cease to hold office
(2) Subject to subsections (3), (4) and (5), the members of the Human Rights
Tribunal Panel cease to hold office on the commencement day.
Continuing jurisdiction of Human Rights Tribunal
(3) The members of any Human Rights Tribunal appointed under the Canadian Human
Rights Act before the commencement day have jurisdiction with respect to any
inquiry into the complaint in respect of which the Human Rights Tribunal was
appointed.
Continuing jurisdiction of Review Tribunal
(4) The members of any Review Tribunal constituted under the Canadian Human
Rights Act before the commencement day have jurisdiction with respect to any
appeal against a decision or order of a Human Rights Tribunal.
Continuing jurisdiction of Employment Equity Review Tribunal
(5) The members of any Employment Equity Review Tribunal established under
section 28 or 39 of the Employment Equity Act before the commencement day have
jurisdiction over any matter in respect of which the Tribunal was established.
Supervision by Chairperson of Canadian Human Rights Tribunal
(6) The Chairperson of the Canadian Human Rights Tribunal has supervision over
and direction of the work of any Human Rights Tribunal, Review Tribunal or
Employment Equity Review Tribunal referred to in subsection (3), (4) or (5).
Remuneration
(7) Each member of a Human Rights Tribunal, Review Tribunal or Employment Equity
Review Tribunal referred to in subsection (3), (4) or (5), other than such a
member who is appointed as a full-time member of the Canadian Human Rights
Tribunal, shall be paid such remuneration as may be fixed by the Governor in
Council.
Travel expenses
(8) Each member of a Human Rights Tribunal, Review Tribunal or Employment Equity
Review Tribunal referred to in subsection (3), (4) or (5) is entitled to be paid
travel and living expenses incurred in carrying out duties as a member of that
Tribunal while absent from their place of residence, but the expenses must not
exceed the maximum limits authorized by Treasury Board directive for employees
of the Government of Canada.