(Disponible en français : L’équité en matière d’emploi dans la fonction publique fédérale du Canada)

Employment Equity: The Legal Framework

The federal public service strives to achieve employment equity in its workforce; that is, it aims to correct disadvantages that particular groups face in employment. As the largest employer in Canada, the public service’s employment equity efforts directly affect many Canadians, while also serving as a potential model for other employers.

The most basic step towards achieving employment equity is non-discrimination. Discrimination by federally regulated employers is prohibited by section 15 of the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act and several international treaties to which Canada is a party.

For example, under article 2 of the International Labour Organization Convention concerning Discrimination in Respect of Employment and Occupation, state parties commit to promoting “equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination.” Federal public servants who experience discrimination can file a complaint with the Canadian Human Rights Commission, which may result in outcomes such as mediation or a decision by the Canadian Human Rights Tribunal.

Beyond protecting against discrimination, the federal public service is required to actively promote employment equity. This means accounting for conditions of disadvantage faced by particular groups, with the aim of achieving a more diverse, merit-based workforce based on equality of opportunity.

The Employment Equity Act – which came into force in 1996 – focuses on four “designated groups:” women, Aboriginal peoples (used interchangeably with “Indigenous Peoples” in this HillNote), persons with disabilities, and members of visible minorities (criticisms of the terminology used by the Act are discussed below).

The Act requires the public service to go beyond simply treating these groups the same as others. Rather, it requires the implementation of policies, practices and reasonable accommodations to ensure that persons in these designated groups achieve representation similar to levels in the Canadian workforce.

Similarly, special measures to promote employment equity in the public service are encouraged through international treaties that Canada has ratified. For example, under article 27 of the Convention on the Rights of Persons with Disabilities, state parties commit to actively employ persons with disabilities in the public sector.

In addition, since 2005 the Public Service Employment Act has tasked the Public Service Commission with ensuring that the public service is both merit-based and representative, and with reporting annually to Parliament on these efforts.

Increasing and Monitoring Diversity

Key public service measures to address employment equity include:

• publishing guides to ensure equity in hiring processes;
• collaborating with federal diversity networks, including the Network for Aboriginal Peoples, the Network for Persons with Disabilities, the Visible Minorities Network, and the Federal Black Employee Caucus;
• requiring large contractors doing business with the federal government to make efforts to hire a diverse workforce; and
• running the Anonymized Recruitment Pilot Project.

Also key to employment equity efforts is monitoring progress through data collection. Table 1 shows the representation levels of designated groups in the federal public service in 2018–2019.

Workforce availability (WFA) is the share of the Canadian workforce that is eligible for federal public service work. In 2018–2019, the federal government met WFA benchmarks for all designated groups except persons with disabilities. However, all designated groups are underrepresented in executive positions compared to their total employment levels. Since 2014–2015, the proportions of women and visible minority employees have risen, while the level of Indigenous employees remains the same, and that of employees with disabilities has declined.

Table 1 – Designated Groups in the Federal Public Service, 2018–2019 (%)

Notes: a: The federal government calculated workforce availability for 2018–2019 using data obtained from the 2016 Census and 2017 Canadian Survey on Disability.
b: Includes the Executive and Law Management occupational groups. These occupational groups are no longer in use.
c: Includes all departures, e.g., dismissals and retirements.

Source: Table prepared by the authors using data obtained from Treasury Board of Canada Secretariat, Employment Equity in the Public Service of Canada: 2018–2019, pp. 6, 24, 26.

Table 2 shows the salary ranges of employment equity groups in 2018–2019. With some exceptions, federal employees of designated groups are overrepresented in lower salary ranges and underrepresented in higher salary ranges.

Table 2 – Salary Ranges of Designated Groups, 2018–2019 (% of Designated Group)

Note: a: Figures may not add to 100.0% due to rounding.
Source: Table prepared by the authors using data obtained from Treasury Board of Canada Secretariat, Employment Equity in the Public Service of Canada: 2018–2019, p. 25.

Key Challenges

Despite some successes in recent years, the public service faces challenges in diversifying its workforce, including:

Terminology: Some argue that the Employment Equity Act defines certain groups using outdated terms that may mask the causes and outcomes of inequality. For example, “Aboriginal” is a legal term used to describe First Nations, Inuit and Métis peoples, although many people prefer to use “Indigenous” instead. The term “persons with disabilities” also refers to a diverse group of people whose experiences and needs may differ from one another. For similar reasons, the UN Committee on the Elimination of Racial Discrimination expressed concern in 2007 observations about Canada’s use of the term “visible minorities” and recommended that Canada “reflect further” on its implications.

Data: Although the government publishes aggregate data on each group, specific information on sub-groups (e.g., salary ranges for employees of a specific ethnic origin) is often unavailable. The use of aggregate data could obscure important inequalities among subgroups. Further, some commentators have suggested that the government could do more to publish and analyze intersectional data (i.e., overlapping identities, such as Indigenous women). More qualitative studies may be necessary to address root causes of inequalities. In addition, for data-gathering purposes, the government relies on employees to voluntarily self-report as being members of a designated group. Many employees choose not to self-identify, which can result in incomplete or misleading data.

Barriers to employment: Social and economic barriers may help explain why members of some designated groups are less likely to apply for or be hired for public service jobs. For instance, people with disabilities and Indigenous people apply at lower rates than their workforce availability would suggest. This trend may reflect broader socio-economic barriers to employment for these groups. The staffing process may also contain systemic barriers and designated groups may face discrimination and bias (including implicit bias). Indeed, people with disabilities, Indigenous people and members of visible minority groups are less likely to perceive public service staffing processes as transparent, fair and merit based.

Barriers to promotions: Each designated group faces unique barriers to being promoted. Indigenous employees and employees with disabilities are promoted at lower rates than members of non-designated groups. While women overall are promoted at higher rates than men, women who are members of a visible minority group have similar promotion rates to men. Further, Indigenous employees are promoted at lower rates than non-Indigenous employees to executive or executive-equivalent roles. When considering executive promotion rates only from executive feeder groups, members of visible minorities are promoted at lower rates than their counterparts, while all other groups are promoted at higher rates than their counterparts. All groups are promoted at lower rates than their counterparts within executive roles.

Push factors: Retirements, resignations, lay-offs and dismissals are all considered “departures.” Departure rates are higher than hiring rates for people with disabilities and women, for which the causes are unclear. There are few studies on designated groups’ departure rates. Factors that may contribute to their departures include higher rates of discrimination and harassment than other groups, as well as concerns about bias, level of accommodation, management or leadership practices, accountability, and public service culture. Social trends may also account for departures. For example, employees who are hired without disabilities may acquire disabilities as they approach retirement age. Women are more likely than men to leave work, often because of career dissatisfaction or for personal or family reasons.

Authors: Robert Mason and Ryan van den Berg, Library of Parliament

Categories: Employment and labour, Government, Parliament and politics, Law, justice and rights

Tags: Canadian Charter of Rights and Freedoms, Canadian Human Rights Act, Disabilities, diversity, employment, Employment equity, equality, indigenous peoples, visible minority, Women