8.6.1  References

• Act 5(b), 10(1)(a)(c), 10(3) 11
• Assessment Factors 6.1 to 6.4
• HRDC Guideline 7, pp. 2 & 11
• CHRC document Policy on Special Programs, located at the end of this Chapter
• Anti-Harassment Policies for the Workplace, located at the end of this Chapter

8.6.2  Importance of Positive Policies and Practices

Although the Employment Equity Act refers only topositive policies and practices, this includes special measures designed to remedy the effects of past disadvantage experienced by designated group members.

Guideline 7 of the HRDC manual is extensively quoted throughout the following section on the importance of positive policies and practices.

Identifying and removing barriers to the employment of designated groups is the first step towards achieving employment equity. However, simply eliminating something, taking down a wall that has existed for some time, is not enough. It is only half the picture. The elimination of a barrier may be called a neutralizing measure to achieve equity. Also required are positive measures to counteract the residual effects of that barrier which could still be evident, for example, in under-representation.


8.6.3  What Positive Policies and Practices Include

First, positive policies and practices are initiatives which help create a respectful, responsive working environment for all employees and attract increased numbers of individuals from under-represented designated groups into the employer's workforce.

Positive policies and practices relate to the hiring, training, promotion and retention of designated group members. A central element of such initiatives includes an employment equity policy and an anti-harassment policy. Positive policies and practices go beyond the mere elimination of barriers. They replace barriers with policies and practices that actively promote a representative workforce.

Second, positive policies and practices include special measures aimed specifically at attracting, retaining and promoting members of designated groups. The objective of such initiatives is to address the ongoing effects of under-representation by ensuring that the organization reaches out and welcomes these individuals; supports them as they enter new occupations; and promotes the creation of a "critical mass" of designated group members in areas where they have traditionally had little representation. Special measures are temporary in nature, and can be justified only as long as the disadvantage persists. While the impact of such measures on third parties must be considered to ensure that they do not unduly exclude other candidates, they play an important role in terms of making changes self-perpetuating.

Third, the provision of accommodation is often included in positive policies and practices, although this is treated as a separate statutory requirement for purposes of the Employment Equity Act. Accommodation is discussed in detail in Section 8.5.


8.6.4  Special Measures are Supported by Law

The CHRC policy paper on Special Programs defines them in this way:

A special program is any plan, arrangement, rule, policy or legislative provision designed to prevent, eliminate or reduce disadvantage that is experienced, or likely to be experienced, by disadvantaged groups. The reason for the disadvantage must be related to a prohibited ground of discrimination as defined in the CHRA or be related to membership in any of the designated groups defined in the Employment Equity Act. It is not a discriminatory practice to adopt or carry out a special program.

Special programs are a feature of human rights protection both in international law, and in the Constitution, Human Rights legislation and Employment Equity legislation in Canada:

• Article 4 of the Convention on the Elimination of All Forms of Discrimination against Women authorizes temporary "special measures aimed at accelerating de facto equality between men and women";
  
• Section 15 of the Canadian Charter of Rights and Freedoms permits "any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups...";
  
• Section 16(1) of the Canadian Human Rights Act provides that "it is not a discriminatory practice for a person to adopt or carry out a special program... designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be based on or related to the prohibited grounds of discrimination...."
  
• Section 5 (b) of the Employment Equity Act requires employers to "institute positive policies and practices as will ensure that persons in designated groups will achieve a degree of representation that reflects their representation in...".the relevant labour pool, and Section 10 requires employers to include these in their employment equity plans.

8.6.5  Examples of Positive Policies and Practices

One aspect of positive policies and practices may be formal policies and procedures aimed at ensuring that people are treated fairly; for example: flexible work arrangements, parental leave policies, improving workplace accessibility, and sensitivity training. Although these sorts of policies and procedures are often of special significance for designated group members, they are generally of benefit to the entire workforce. They will tend to improve the workplace environment for everyone.

8.6.6  Examples of Special Measures

There are many examples of special measures, and each employer should select and design measures that reflect the organization's situation and needs. Options may include:

• launching outreach efforts in schools or communities where members of under-represented designated groups are concentrated;
  
• establishing internal mentoring and networking initiatives for designated group members;
  
• creating special training programs or bridging positions to prepare designated group members for non-traditional occupations; and
  
• deciding that, for a limited period of time, the applications of "qualified" or "qualifiable" candidates from under-represented groups will be given careful consideration for a certain percentage of new openings.

8.6.7  Legal Framework

Positive policies and practices include special measures

There are four major provisions dealing with Positive Policies and Practices in the Act.

Section 5(b) states that every employer shall implement employment equity by:

b)  instituting such positive policies and practices as will ensure that persons in designated groups will achieve a degree of representation that reflects their 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.

This is interpreted to include special measures specifically targeted at members of designated groups who are significantly under represented, in order to remedy the effects of past disadvantage.

These Must be Included in the Employment Equity Plan

In addition to accommodation, Section 10(1)(a) requires the employment equity plan to specify short term positive policies and practices designed to correct the under-representation of designated groups in specific occupational groups. This requirement should be read in tandem with sections 10(b) (d) and (e) which require the employer to indicate the measures and strategies to be taken to eliminate employment barriers and meet the short term hiring and promotion goals and the long term representation goals which must also form part of the employment equity plan.

Must Include a Short Term Timetable

Section 10 (1) (c) requires employers to establish a timetable in their employment equity plan for the implementation of every positive policy and practice. This timetable must reflect the short term period of not less than one year and not more than three years are defined in section 10(3).

Must Result in Reasonable Progress

Section 11 requires every employer to ensure that its employment equity plan will constitute reasonable progress towards implementing employment equity. The compliance review officer must be convinced that the positive measures proposed in the plan will be adequate to ensure reasonable progress in terms of meeting the goals for occupational groups identified as being under-represented.


8.6.8  Measuring the Impact

Many organizations fail to properly monitor the impact of the positive and special measures which have been implemented. Although this is not a legislated requirement, the organization's report should clearly indicate how these measures provide an advantage to one or more of the designated groups.

For example, an internship program is relevant to the employment equity program only if it has been used to bring in designated group workers. If such practices or special measures are identified, the report should indicate what impact they have had. For instance, "over the last three years, the internship program has accepted 60% women and resulted in ten hires into the company from this designated group."

If results are not available, it should be suggested to the organization that they monitor the impact of their program in order to determine how it contributes to reasonable progress.

Assessment Factors

What Policies and Practices Should Cover Assessment Factor 6.1 The plan specifies policies and practices that will be instituted in order to improve opportunity for under- represented groups and promote an equitable workplace environment. Positive policies would normally cover matters such as employment equity, harassment, and support for designated group employees' integration into the workplace. Positive practices could include proactive outreach and mentoring programs.

8.6.9  What the Employment Equity Plan Should Include

The plan must set out the positive policies and practices that the employer intends to institute in the following one to three years to correct the under-representation of designated group members which has been identified in the workforce analysis. Positive policies and practices respond to the elimination of barriers identified in the employment systems review and actively promote a representative workforce.


8.6.10  What Positive Policies Should Include

This assessment factor requires that the employment equity plan specify positive policies which will improve opportunities and the environment for designated group members. For both policies and practices, the primary beneficiaries are members of the designated group although they are often not exclusively set aside for these employees.

As a bare minimum, every plan should at least elaborate on an employment equity policy and an anti-harassment policy, as well as an accessibility policy as explored in the Chapter dealing with Accommodation.

An Employment Equity Policy

The Employment Equity Policy:

An employment equity policy will provide a visible commitment to employees and the public of the commitment on the part of the organization and the union to employment equity and provide a framework for subsequent action. It should be clearly enunciated and communicated to all employees. The HRDC Manual at Guideline 1 describes the Employment Equity Policy in this way:

"The policy statement should include

• a statement of the organization's commitment to implementing employment equity;
  
• a concise definition of employment equity, specifying that it is a human resource planning tool designed to eliminate barriers in the workplace that may prevent the full participation of all employees and potential employees, including designated group members. It should also state that it will benefit not only human resource planning but also contribute to the overall effectiveness of the organization;
  
• how the organization intends to monitor the implementation of the Act;
  
• a statement that the principles of employment equity - fairness and an avoidance of bias - are not new to the organization. As well, the statement can be used to dispel some myths that exist about employment equity. For instance, it can say that employment equity does not mean reverse discrimination and that quotas are not part of the program; and
  
• an outline of the administrative structure of the program, including the reporting relationships of the staff managing the program, and the roles and responsibilities of any committees that may exist and how they fit into the overall structure of the program.

A Harassment Policy

The Harassment Policy:

The Commission has developed some model harassment policies which are located at the end of this Chapter. These can be readily shared with employees who require assistance in this respect.

Carswell's Employment Equity Manual (available from the Commission library) comments on workplace anti-harassment policies in this way:
"An anti-harassment policy is vital to achieving employment equity. Without an effective way to eliminate workplace harassment and an active way to promote valuing diversity, organizations will likely see a revolving-door pattern among their designated group employees - they join the organization but they soon leave.

The hard costs of this pattern are significant: the costs of recruiting, selecting and training replacement employees. What is more, studies show that a workplace where harassment is tolerated (and sometimes even encouraged) results in lower productivity, lower morale, higher absenteeism and higher turnover. These are the hard costs, too, although not all employers pay attention to them because they don't know how to quantify them.

What should be clear is that workplace harassment is counterproductive to both employment equity and to business efficiency. Harassment is also discrimination, and it is illegal under human rights law, whether based on race, sex, or disability. It is also illegal on other grounds that go beyond the designated group characteristics of sex, race and disability, such as age.

Employees are becoming more and more aware of their right to a discrimination-free workplace. They are more and more willing to pursue this right before human rights tribunals, workers' compensation boards and in the courts. Those tribunals and courts have awarded both financial and public-policy remedies to victims of harassment.

8.6.11  Requirements of the Canada Labour Code on Harassment

Compliance officers will review private sector harassment policies against the requirement of The Canada Labour Code. Division XV.1, Section 247.1 of the Code defines "sexual harassment" as any conduct, comment, gesture or contact of a sexual nature

a)  that is likely to cause offence or humiliation to any employee; or

b)  that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion.

Section 247.4 requires that

(1)  Every employer shall, after consulting with the employees or their representatives, if any, to issue a policy statement concerning sexual harassment.

(2)  The policy statement required by subsection (1) may contain any term consistent with the tenor of this Division the employer considers appropriate, but must contain the following:

(a)  a definition of sexual harassment that is substantially the same as the definition in section 247.1;

(b)  a statement to the effect that every employee is entitled to employment free of sexual harassment;

(c)  a statement to the effect that the employer will make every reasonable effort to ensure that no employee is subjected to sexual harassment;

(d)  a statement to the effect that the emploeyr will take such disciplinary measures as the employer deems appropriate against any person under the employer's direction who subjects any employee to sexual harassment;

(e)  a statement explaining how complaints of sexual harassment may be brought to the attention of the employer;

(f)  a statement to the effect that the employer will not disclose the name of a complainant or the circumstances related to the complaint to any person except where disclosure is necessary for the purposes of investigating the complaint or taking disciplinary measures in relation thereto; and

(g)  a statement informing employees of the discriminatory practices provisions of the Canadian Human Rights Act that pertain to rights of persons to seek redress under that Act in respect of sexual harassment.

(3)  Every employer shall make each person under the employer's direction aware of the policy statement required by subsection (1).


8.6.12  What Positive Practices Should Include

The employment equity plan must also specify positive practices aimed at ensuring that people are treated fairly.

Although they are often of special significance for designated group members, positive practices generally improve the workplace environment for everyone. These practices should be clearly tied to occupational groups where under-representation has been found.

Examples of positive practices include outreach recruitment; mentoring and career development programs; flexible work arrangements; improvements to workplace accessibility; and sensitivity training. Among the most important positive practices in today's workplace are measures which permit employees to balance work and family.

Compliance officers may also mention these policies under Assessment Factor 5 related to Accommodation, Chapter 8.5.

In her book Employment Equity: Making It Work (available from the Commission Library), Nan Weiner explores the issue of balancing work and family at page 175. This is recommended reading. Following are some of the major observations made in this book.

• An organization's effort to help their employees balance work and family is an example of eliminating barriers, an accommodation measure and a "supportive measure" (positive practice).
  
• Several studies have demonstrated that there is a growing trend amongst women and men to make trade offs in their careers in order to achieve a better balance between work and family responsibilities. The Conference Board published a study in 1989 which showed that 10% of their informants (both men and women) had left a job because of work and family conflict, 14% were considering leaving their current job for this reason, and 66% reported some difficulty balancing family and work.
  
• Examples of work-family policies include flexible hours; compressed work week; part-time work; job sharing; maternity and parental options; child care; telework; personal leave; allowing sick leave to be used for family medical matters; unpaid leaves and sabbaticals; flexible benefits which give employees the option of picking from three or four basic benefit programs.
  

Special Measures Assessment Factor 6.2 Among the positive policies and practices, there may be special measures for members of designated groups substantially under-represented in certain occupational groups or in the organization as a whole. These could be aimed, in part, at creating a "critical mass" of designated group employees which will help to make change more self-sustaining. These special measures may relate to hiring, training, promotion, and retention, and should be: (i)  carefully tailored to a situation of demonstrable and significant disadvantage; (ii)  explicitly temporary in nature (meaning that the impact of each measure is reviewed on a regular basis and the measure is left in place only as long as the situation of disadvantage persists); and (iii)  designed in a manner which prevents undue exclusionary effects on non-designated group members.

8.6.13  What are Special Measures?

As explained in Sub-section 8.6.12, special measures are a subset of positive policies and practices and are defined as initiatives where race, disability or gender are explicitly taken into consideration when human resource decisions are being made.

Special measures may be as minimal as a mentoring program designed specifically for women to support their development for senior management, or as a career development service directed exclusively towards Aboriginal people. Conversely, they may be as proactive as a training initiative restricted to persons with disabilities, a provision that women deemed equally qualified will be given preference over male applicants, or the establishment of a special recruitment inventory for visible minority candidates.

As discussed above, such measures are permissible under Section 16 of the Canadian Human Rights Act and this provision, in turn is permitted under section 15 of the Charter of Rights.


8.6.14  Standards Which Must be Met When Implementing Special Measures

There are six standards which must be met:

1.  Special measures must advance equality.

Inherent in the notion of special measures is the idea that in the pursuit of equality, it may be necessary to treat individuals or groups differently in order to establish "substantive equality". Special measures must be designed and administered to ensure that this objective is always paramount. It has been clearly established by the courts that validly constituted special measures are not a limit or exception to equality. Rather they are a means of advancing the achievement of equality.

2.  Special measures must address genuine disadvantage.

The organization must establish that the target group experiences disadvantage, usually evidenced by the results of the workforce analysis which shows significant under-representation. For example, special measures may be warranted within organizations where the equitable representation of persons with disabilities is lacking and where they do not have access to the same employment and advancement opportunities as non-disadvantaged sectors of the workforce.

3.  Special measures must be tailored to meet the actual needs of the under-represented group.

A determining factor in establishing that the special measures will address under-representation is whether the program meets the actual needs of the under-represented group for which it is intended. There must be a demonstrable connection between the special measures and their intended goals. For example, if special measures are aimed at improving employment prospects for visible minority professions, there must be clear evidence that the measures in fact achieve this goal.

4.  The impact of the special measures on third parties must be considered.

Special measures may have some impact on non-designated group members. The measures must be designed in a way which avoids undue exclusionary effects on non-designated group members, in particular in terms of their hiring and promotion opportunities. For example, a provision to accept applicants only from a certain designated group for an unspecified period of time or to restrict all developmental opportunities leading to promotion to visible minorities would, in all probability, not meet this last test. "Undue" is, of course, a relative concept and the compliance review officer will need to apply good judgement to determining when an initiative goes too far.

5.  Special measures must be proportional to the degree of under representation.

Greater and more entrenched disadvantage demonstrated through the degree of under-representation may necessitate more comprehensive and far reaching special measures. For example, it may be possible to justify special measures that are more restrictive within workforces where there is a history of exclusion. A good example is visible minorities in management positions, as evidenced by the NCAAR decision involving Health Canada located at the end of this Chapter. Factors to be considered include the degree of under-representation, the size of the organization, the scope of the measure, the type of industry and alternatives available to third parties.

6.  Special measures are temporary

Special measures should be explicitly temporary in nature, usually with clear sunset provisions. The appropriate length of such initiatives will depend on the significance of the under-representation as well as its impact on the removal of the relevant gap. A special measure can therefore only be justified for as long as the disadvantage persists. At the very least, there should be provisions to regularly monitor the impact of the measure and to modify or remove the initiative as progress is achieved.


8.6.15  Special Measures in the Public Service

Through its Employment Equity Positive Measures Program (EEPMP), the Treasury Board provides additional support including tools, services and funding to assist departments and agencies meet their employment equity goals and objectives. An information document is available on the Internet site at http://publiservice.hrma-agrh.gc.ca/ee/

The EEPMP is the successor program to the Special Measures Initiatives Program (SMIP). It is a four-year program which was approved by the Treasury Board in October 1998 and will end of March 31, 2002. Funding is planned at up to $10 million annually.

The EEPMP moves away from funding individual departmental projects to funding projects that will require a partnership approach. The program has four major components: the Intervention Fund, the Partnership Fund, the Career Counselling Office and the Enabling Resource Centre for Persons with Disabilities.

The Fund management consists of the following:

• the EEPMP Management Board is composed of mostly ADM level officials including seven from departments across the public service and the Chair and Vice-Chair of the TBS. Their role is to monitor the allocation of EEPMP resources, set overall direction, and approve, monitor and at times identify projects for funding.
  
• The Positive Measures Program Group at TBS is responsible for the overall coordination of the EEPMP as well as ongoing oversight and monitoring of the implementation of all components. It facilitates linkages among stakeholders, monitors results and expenditures, identifies gaps and provides advice to the Management Board on the relocation of funds. The access number is (613) 952-2870 or 952-3031.
  
• The Program and Services Division of the PSC oversees the implementation of all components except the Intervention Fund which is a responsibility of TBS. PSC provides assistance and direction to PSC Regional Directors General with regard to the Partnership Fund and is responsible for recommending the allocation of funds among PSC regions to the EEPMP Management Board. The PSC disseminates information on best practices, tools and techniques, undertakes related marketing and communication activities, provides operational support and manages financial resources for the three components delivered by the PSC. They can be accessed at (613) 992-9732.

Implementation Timetable Assessment Factor 6.3 The plan includes a timetable for the adoption and implementation of each positive policy, practice and special measure within a reasonable period of time, taking into account: (i)  the significance of the policy, practice or special measure; (ii)  internal and external resources and constraints; and (iii)  the complexity and costs of implementation.

8.6.16  The Plan Must Include a Short-term Timetable

The employer must have a timetable for the adoption and implementation of each positive policy and practice within the short-term. The Act defines short term as a period of not less than one year and not more than three years.

The timetable should ensure continuous and steady progress towards the goal of ensuring equitable employment. In particular, compliance officers should verify that where the timetable relates to more than one year, employers undertake activities in each year and do not defer all activities until the end of the period to which the plan relates.

8.6.17  Is the Timetable Appropriate?

As with the implementation of changes to employment systems, the compliance officer should consider the following factors when assessing the appropriateness of the timetable:

• the significance of the measures and their potential impact;
  
• internal and external resources and constraints; and
  
• the complexity and possible costs of implementation.

If some measures cannot be implemented in the short term, the employer should recognize that there exists an obligation to ensure that its employment equity plan will constitute reasonable progress toward implementing employment equity.

The compliance officer will need to take into account considerations such as those described in sections dealing with the Elimination of Barriers, Section 8.4 and the implementation of an Accommodation Policy, Section 8.5.

Linked to Goals Assessment Factor 6.4 The positive policies, practices and special measures proposed in the plan are sufficient to ensure that short-term hiring and promotion goals and long-term representation goals (outlined in statutory requirements 7 and 8) are achieved.

8.6.18  Must Ensure Goals Will be Met

Perhaps the most difficult assessment for the compliance review officer is to determine whether or not the positive policies and practices, and special measures proposed by the employer are sufficient to ensure the achievement of short term hiring and promotion goals and long term representation goals.

In assessing compliance with this assessment factor, the compliance officer should consider the following key elements:

1. Does the employment equity plan include positive policies and practices and special measures for each occupational group where there is under representation? If it is unclear whether or not there are such initiatives which explicitly respond to each identified occupational group where a gap exists, this should be noted as an area for verification during the on-site visit.
   
   
2. Are the positive policies and practices and special measures established by the employer reasonable when assessed against the degree of under-representation which must be corrected, and constraints such as the expected hiring and/or turnover rate for each occupational group? (The section dealing with hiring and promotion goals discusses how these should be assessed for their appropriateness).
   
   
3. Are the proposed measures likely to have a strong enough impact given the significance of the gap? For example, a centralized inventory system for persons with disabilities may not be sufficient where the designated group has been excluded because of a network of barriers, including attitudes and lack of accommodation, and the process of decision-making on staffing remains highly decentralized.

Assessing Compliance
8.6.19  Sampling Positive Policies and Practices

In many audits, it will not be possible for the compliance officer to consider in depth all the positive policies and practices, and special measures contained in an employment equity plan to determine if they are sufficient to support the employer's goals.

Once the officer is reasonably confident that the employer's plan contains positive initiatives for occupational groups where there is under-representation, it will be necessary to select a sample of these for more intensive assessment. Some of the analysis will then be done using the documentation received with the survey questionnaire with further assessment being done as part of the on-site verification.

The sampling technique is examined in detail in the chapter entitled Audit Methodology, and is similar to that outlined in the paragraph entitled "Sampling areas for in-depth review" in the chapter on Employment Systems Reviews.

8.6.20  Key Audit Considerations

In determining compliance, the compliance officer must be satisfied that the employer has addressed all of the key elements outlined above. In summary:

Included in the plan?

Are positive policies and practices and special measures included in the employment equity plan?

Minimum met: employment equity, harassment, and accessibility policies?

Do positive policies address as a minimum an employment equity policy, a harassment policy and accessibility policy (elaborated in the section on Accommodation)?

Address hiring, training promotion & retention?

Do special measures address hiring, training, promotion and retention of under-represented designated groups?

Special measures meet key standards?

Do special measures meet the key standards identified above: do they advance equality, address genuine disadvantage, meet actual needs, minimize impact on third parties, are they proportional to the degree of under representation and temporary in nature?

Appropriate timetable?

Does the employment equity plan include a short term timetable for the implementation of positive policies and practices, and special measures?

Linked to goals?

Do the positive policies and practices and special measures provide a reasonable basis to believe that short term hiring and promotion goals and long term representation goals can be achieved?

Measure the impact?

Does the organization monitor the impact of positive policies and practices and special measures in order to determine how they contribute to reasonable progress? Although this is not a legislated requirement, compliance officers should suggest that organizations measure these results.

8.6.21  Determining Compliance

It is important to remember that the objective is not to assess and pass judgement on each and all of the positive policies and measures contained in the employer's employment equity plan. If the review and verification indicates that in all cases - or even in most cases - selected as part of the sample, the proposed or implemented initiatives are appropriate, the compliance review officer should indicate that, based on the information examined, the employer would appear to be in compliance.

If, on the other hand, the compliance review officer finds few of the initiatives examined are sufficient, it will be necessary to seek an undertaking from the employer to review all its positive policies and practices and develop new measures where necessary.

8.6.22  Undertaking

Where an employer is not in compliance with any of the requirements related to this statutory requirement, the Act requires:

That (name of employer) develop an undertaking to:

• assess the appropriateness/effectiveness of current positive policies, practices and special measures, in light of the findings of the workforce analysis and the systems review (add when revised or when completed, if necessary)
  
• develop new and/or modified positive policies, practices and special measures for those occupational groups where under-representation was established in order to respond to the results of the employment systems review;
  
• ensure that the positive policies , practices and special measures are sufficient to meet the goals identified for each occupational group where under-representation was established;
  
• include the positive policies, practices and special measures in the employment equity plan, along with a short-term timetable for their implementation.