Employment equity and the duty to accommodate under workforce adjustment: what we know about what's happening
PSAC has worked to promote employment equity in the workplace. And it has paid off: things are not perfect but the representation of women, racially visible and Aboriginal persons as well as persons with a disability has steadily increased over the years.
But what happens to employment equity during the workforce adjustment process?
The Employment Equity Act says the employer must be “proactive” not only with hiring, but also keeping track of “separations” (i.e. terminations, layoffs, resignations) of equity group members. The employer must also analyze its policies, practices and systems to ensure that potential discrimination is addressed.
The employer must ensure equity groups aren’t unfairly the subject of layoffs (intentionally or unintentionally), and that we keep our commitments to a representative public service.
And employees with disabilities and others who need accommodation in their jobs must not be discriminated against on human rights-related grounds if workforce adjustment requires them to change jobs.
The PSAC has raised these issues in a number of forums over the past few months, including
- the Public Service Commission Advisory Committee (PSCAC),
- the National Joint Council Joint Employment Equity Committee (JEEC), and
- the National Workforce Management Consultation Committee (NWMCC).
Information provided by Treasury Board and the Public Service Commission
The Public Service Commission has said:
- Employees are asked to self-identify for employment equity purposes when they are registering for the priority system. (Any previous self-ID forms they have completed are not used). Employment equity can be a criteria in both selection for retention ( SERLO ) processes as well as staffing processes (priority or otherwise), where the department’s employment equity plan justifies it.
- Accommodation: Employees can identify their restrictions and limitations and organizations have to take those into consideration. The Personnel Psychology Centre can assist with accommodation issues during the assessment process. Priority candidates: Those that need accommodation during the assessment or in the job can indicate this when they indicate that they are interested in the position (or later in the process).
- If a priority candidate is not being accommodated in the assessment process, the employee can raise this with the PSC, who will then follow up with the Office of the Chief Human Resources Officer (OCHRO).
- If a priority employee (or any employee) believes they have been discriminated against in the assessment process, they may be able to file a staffing complaint or a human rights complaint. (Note however, that if a priority person was appointed to the position, there is no right to recourse through the PSST).
Despite our requests, Treasury Board has provided little information on WFA and EE. Regarding accommodation, Treasury Board agrees that the employer has a duty to accommodate employees taking leave of absence due to illness or maternity/parental leave during the WFA process.
What do the numbers show?
The bargaining agents have asked Treasury Board for data on all aspects of WFA, including a breakdown of data by equity group. This would include the number of affected, surplus, opting, and laid-off employees.
Treasury Board has said they do not have this information and don’t have the resources to collect it. Instead, they rely on the departments to report it, and that this is being done only sporadically.
The Public Service Commission is only responsible for overseeing staffing and maintaining the priority list. Therefore, their information on WFA is limited. PSC does have data for those on the priority list for three of the four equity groups. The PSC doesn't track gender and has no data for women. PSAC raised concerns about this and we have asked that this data be tracked and reported.
In response to our requests, the Public Service Commission has provided PSAC with the information regarding employees on the priority lists, with a breakdown for the three equity groups (including employees who are surplus due to a guarantee of a reasonable job offer and those that are surplus due to Option A). Unfortunately, the statistics do not provide a complete picture. For example, although they show disproportionately high rates for the equity groups under Option A (i.e. a higher proportion than their representation in the workforce), there is no way to know whether equity group members are being declared “opting” at a higher rate than non-equity employees, or if they are just more likely to choose Option A. In order to figure out which was the case, we would need the information about representation among those that chose Options B (transition support measure) and C (education allowance) as well. PSC does not collect this information.
It is also important to point out that the priority list data changes daily, as new employees go on priority and others come off the list. What PSC has provided is only one “snapshot” of the data on a given day. PSAC has therefore asked the Public Service Commission to keep and provide us with a running total for the equity groups.
PSAC will continue to put pressure on the central agencies to provide information in keeping with their duty to consult under our collective agreements and the employment equity legislation.
We will also continue to collect information from specific departments and that which members and representatives provide.
We will analyze that information and provide updates as we can.
Date Modified : 2013/01/24