Short Title

Marginal note:Short title

1 This Act may be cited as the Employment Equity Act.

Purpose of Act

Marginal note: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

Marginal note:Definitions

3 In this Act,

aboriginal peoples

autochtones

aboriginal peoples means persons who are Indians, Inuit or Métis; (autochtones)

Canadian workforce

population apte au travail

Canadian workforce means all persons in Canada of working age who are willing and able to work; (population apte au travail)

Chairperson

président

Chairperson means the chairperson of the Canadian Human Rights Tribunal; (président)

Commission

Commission

Commission means the Canadian Human Rights Commission established under section 26 of the Canadian Human Rights Act; (Commission)

compliance officer

agent d’application

compliance officer means a person designated as an employment equity compliance review officer pursuant to subsection 22(3); (agent d’application)

designated groups

groupes désignés

designated groups means women, aboriginal peoples, persons with disabilities and members of visible minorities; (groupes désignés)

members of visible minorities

minorités visibles

members of visible minorities means persons, other than aboriginal peoples, who are non-Caucasian in race or non-white in colour; (minorités visibles)

Minister

ministre

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; (ministre)

Panel

Panel[Repealed, 1998, c. 9, s. 37]

persons with disabilities

personnes handicapées

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; (personnes handicapées)

prescribed

Version anglaise seulement

prescribed means prescribed by the regulations; (Version anglaise seulement)

private sector employer

employeur du secteur privé

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 Yukon, the Northwest Territories or Nunavut, or

• (b) a departmental corporation as defined in section 2 of the Financial Administration Act; (employeur du secteur privé)

representatives

représentants

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; (représentants)

Tribunal

tribunal

Tribunal means an Employment Equity Review Tribunal established by subsection 28(1). (tribunal)

Application

Marginal note:Application

• 4 (1) This Act applies to

  • (a) private sector employers;

  • (b) the portions of the federal public administration set out in Schedule I or IV to the Financial Administration Act;

  • (c) the portions of the federal public administration set out in of Schedule V to the Financial Administration 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.

• Marginal note: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 Schedule IV to the Financial Administration 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 Schedule IV to the Financial Administration Act.

• Marginal note: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.

• Marginal note: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 federal public administration referred to in paragraph (1)(b).

• Marginal note: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.

• Marginal note: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.

• Marginal note: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 federal public administration 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 functions of the Treasury Board or the Public Service Commission, as the case may be, referred to in this section.

• Marginal note: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 IEmployment Equity

Employer Obligations

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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 agreements relating to workforce adjustment, or by the Public Service Commission or any other portion of the public sector referred to in paragraphs 4(1)(c) and (d).

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

• Marginal note: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).

• Marginal note:Collaboration

  (3) Every employer and its employees’ representatives shall collaborate in the preparation, implementation and revision of the employer’s employment equity plan.

• Marginal note:Rule of interpretation

  (4) Consultation under subsection (1) and collaboration under subsection (3) are not forms of co-management.

Marginal note: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.

• Marginal note: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

Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Copy to Commission

  (10) The Minister shall, on receipt of a report, send a copy of it to the Commission.

Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note: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 federal public administration referred to in paragraph 4(1)(b) during the immediately preceding fiscal year.

• Marginal note: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 federal public administration 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 federal public administration 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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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 IICompliance

Compliance Audits

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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).

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note:Limitation

  (3) No application may be made pursuant to subsection (2) where the employer has requested a review in accordance with subsection (1).

Employment Equity Review Tribunals

Marginal note: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.

• Marginal note: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.

• Marginal note:Qualifications of members

  (3) The Chairperson shall, in appointing members of the Tribunal, take into consideration their knowledge and experience in employment equity matters.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Rules

  (9) The Chairperson may make rules governing the practice and procedure of Tribunals.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note:Hearings to be public

  (3) Subject to subsection (4), a hearing before a Tribunal shall be conducted in public.

• Marginal note: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.

• Marginal note:Reasons for decision

  (5) A Tribunal shall provide the parties to a proceeding before the Tribunal with written reasons for its decision.

• Marginal note: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.

Marginal note: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.

• Marginal note:Board may vary or rescind

  (2) A Tribunal may vary or rescind any order made by it.

• Marginal note:Orders are final

  (3) An order of a Tribunal is final and, except for judicial review under the Federal Courts Act, is not subject to appeal or review by any court.

Marginal note: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.

• Marginal note: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.

Marginal note: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

Marginal note: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).

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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 IIIAssessment of Monetary Penalties

Violations

Marginal note: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.

• Marginal note: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.

• Marginal note:Violations not offences

  (3) A violation is not an offence and accordingly the Criminal Code does not apply in respect of a violation.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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

Marginal note: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.

• Marginal note:Copy of application

  (2) If the Minister receives a written application, the Minister shall send a copy of it to the Chairperson.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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).

• Marginal note: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.

• Marginal note: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.

• Marginal note:Determinations are final

  (8) A determination of a Tribunal under this section is final and, except for judicial review under the Federal Courts Act, is not subject to appeal or review by any court.

Enforcement of Monetary Penalties

Marginal note: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.

• Marginal note: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 IVGeneral

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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 Minister of Public Safety and Emergency Preparedness; and

  • (b) in the case of a regulation respecting the Canadian Forces, the Minister of National Defence.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note:Delegation

43 The Minister may authorize those persons employed in the federal public administration 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.

Marginal note: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.

• Marginal note: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

Marginal note: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

Marginal note:Coming into force

Footnote ^*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.

• Return to footnote ^*[Note: Act in force October 24, 1996, see SI/96-93.]