3. ASSESSMENT FACTORS

There are six assessment factors related to the statutory requirement to conduct an Employment Systems Review.

This section focuses on the approach employers should use when fulfilling the requirements of each assessment factor related to the ESR. This will assist compliance review officers when assessing whether or not the analysis completed by the employer is likely to have identified all important barriers which may contribute to any under-representation.

This information applies equally to the private sector and the public service. In the latter case, however, employers are encouraged to consult the Treasury Board Secretariat publication entitled, Employment Systems Review, A Guide for the Federal Public Service, published in March 1998.

3.1.1  Reviewing policies and practices
3.1.1  HRDC Guidelines 6, Part C

As a result of the workforce analysis, the employer will have identified all the specific occupational groups where under-representation exists for designated group members.

In the Public Service

The Treasury Board Secretariat document entitled Shared Responsibilities for Implementing the New Employment Equity Legislation indicates that, where there is under-representation of designated group members, employers must review related employment systems, policies and practices in order to identify barriers not permitted by law. It clarifies that TBS, PSC and departments or agencies will each review employment systems, i.e., policies and practices, under their respective administrations. In addition, the Treasury Board Secretariat recommends that the review be carried out in relation to the four designated groups, even if one designated group is not currently under-represented.

The ESR must examine those nine employment systems mentioned in the Regulations, interpreted in the private sector and the Treasury Board Secretariat Guide as follows:

Where these policies may contribute to the under-representation of designated group members, they must be reviewed in order to identify any employment barriers which may have an adverse impact on their employment opportunities. This includes:

• policies and practices covering the workplace as a whole which may contribute to under-representation found in an occupational group; and

• policies and practices specific only to an occupational group with under-representation.

3.1.2  Has the employer completed the following steps:

The appropriate audit procedure would be to determine whether or not the employer has completed the following steps involved in an ESR. Each is discussed in detail below.

Step One: Has the employer identified all specific occupational groups where under-representation exists for designated group members?

Step Two: For each occupational group with under-representation, has the employer made a concerted effort to identify all key policies, procedures and practices, both formal and informal, whether written or not, as well as attitudes and working conditions, which may affect a designated group’s equitable representation?

Step Three: Has the employer clearly determined and documented which employment systems may have an adverse impact on the designated group under-represented in each occupational group?

Step Four: Has the employer assessed whether or not those systems which do constitute a barrier can be defended as valid requirements, keeping in mind an employer’s overriding duty to accommodate?

Step One: is the ESR based on reliable data?

The ESR must be based on an acceptable workforce survey and a reasonable workforce analysis. As a result of the workforce analysis, the employer must have identified all the specific occupational groups where under-representation exists for designated group members, and recognized that an ESR is required for each of these occupational groups.

Step Two: does the ESR cover all policies and practices?
HRDC Guideline 6, page 5

For each occupational group with under-representation, the employer must first identify all generic and specific systems, policies and practices which might have contributed to the under-representation. The important first question which should be asked is not "do we do this?" based on a checklist of possible barriers. Rather, it should be "how do we actually recruit, promote, and so on for this occupational group?".

The Regulations are clear in outlining the nine employment systems which must be included. However, the challenge for an employer is to look beyond formal policies in an attempt to detect informal practices which unfairly exclude the participation of designated group members in the workforce.

Whether formal or informal, these systemic barriers can be subtle and hard to detect, and they usually result from a lack of awareness of their impact on designated group members. An ESR should pinpoint such examples of systemic barriers, and help employers determine where changes are needed to ensure that everyone is treated fairly.

Some issues to look for in assessing this requirement include the following:

Formal and informal practices?

Did the employer identify not only formal, written policies and procedures but also those which are informal?

A systems review must be more than just a review of written policies and clearly prescribed practices. It must determine which informal practices may also be in use, and those not committed to print in the human resource management manual.

Often, informal practices do not follow written policies. There may be procedures based on traditional practices that routinely occur on an ad hoc basis, or as a result of a "common understanding" based on the preferences of individual employees of the organization. Very often, these practices represent substantial barriers since they tend not to be recognized by the organization. They are best detected through consultations with union and employee representatives, climate surveys and focus group discussions.

In the case of the Public Service, the Treasury Board Secretariat Guide describes these as "evolving from historical practices or assumptions of convenience (for instance, staffing primarily through personal networks or favoured campuses) and invariably exclude designated group members or place them at an unreasonable disadvantage in accessing job opportunities. Many barriers may be unintentional and hidden in the way the employment system works. Many arise from the almost invisible and seemingly neutral practices entrenched in day to day operations; for example, things as simple as information about competitions and application forms being available only in centralized or difficult to access locations, or not in the regions."

How are they implemented?

Did the employer review how practices and policies are actually implemented?

Equally important are how practices are followed, and how policies and procedures are actually implemented. For example, a policy may require that all job interviews be carefully structured with questions, responses and a point rating system determined prior to the actual interview. However, the common practice may be to simply write down the questions, and decide on the grading system after the interviews, allowing for considerable subjectivity on the part of those doing the hiring. Also important are how procedures are applied. For example, are skills assessed for some candidates but not all candidates? If a test is not consistently applied in all cases, it cannot be said to be essential for selecting the best candidate.

Attitudes and behaviours?

Has the employer reviewed attitudes and behaviours?

An employer who has only conducted a desk audit of the human resources manual may run the risk of missing significant barriers. This will particularly be the case where negative attitudes, corporate culture, stereotypes and group preferences can come to play an important role in outcomes of staffing actions.

As stated in the HRDC Guideline Manual, page 6, employee behaviours are equally important in ensuring a fair and equitable workplace. No matter how fair an organization’s policies may be, if individual managers do not apply them consistently and fairly, the organization will not be equally accessible to everyone. Attitudes are one factor in shaping behaviour, and the attitudes and behaviours of individual employees help form the organizational climate as a positive or negative experience for designated group members.

The Health Canada & National Capital Alliance on Race Relations Tribunal decision is a good example of a workplace where attitudinal behaviours were at the root of many barriers for visible minority employees.

Step Three: does the ESR determine the presence of an adverse impact?

Has the employer clearly determined which employment systems have an adverse impact on the designated groups under-represented in each occupational group?

There are three basic ways by which an employer may have determined the presence of an adverse impact.

Formal employee tracking system

If the employer has captured formal data on different steps in the staffing and other human resource management processes, it may be possible to clearly determine whether or not there is an adverse impact. For example, test results may indicate that women are less successful than men, or Aboriginal people apply at an appropriate level but are more likely to be screened out prior to an interview or at the interview itself.

It should be noted that this type of statistical analysis may be inappropriate for those occupational groups in which very small numbers exist. In such cases, statistical analyses may be more appropriately undertaken on an organization-wide basis or by combining two or three related occupational groups for analysis.

Demographic and social data

The employer may not have tracking data specific to its organization, but other sources of data may exist. For example, educational data may indicate that requiring certain credentials will adversely affect one or more groups. Research may exist which indicates that a group tends to score lower when certain types of selection tools are used.

Employee input

In some cases, data may not exist to support a finding of adverse impact but it is still possible to draw sound conclusions. Often the most useful tool is input directly from designated group employees who may help identify unintended outcomes from apparently neutral systems and practices which have a negative impact on their employment opportunities. For example:

• Selection tools premised on aggressive, forceful behaviour may tend to exclude certain cultures where such behaviour is not considered appropriate.
  
• Strict requirements for random shift or overtime work may adversely affect women who continue to bear primary responsibility for child care.
  
• Members of visible minority groups may have to seek out developmental opportunities while others are approached directly for special assignments, thereby restricting their chances at promotions.
  
• By interviewing both female and male managers in the Public Service, one study concluded that women were assessed more stringently during annual appraisals.

Even more common perhaps is the identification of barriers due to attitudinal and unequal treatment. Sometimes, a commonly held belief among designated group employees — even when completely unfounded — that an organization is biased will result in their not seeking advancement or employment opportunities into the company.

Because they have first-hand knowledge of how human resource policies and practices can affect them, employee input is crucial in understanding how a seemingly neutral policy can exclude designated group employees from fully participating in the workforce. Union representatives familiar with the operation of the employment systems and practices are also good sources of information.

Step Four: Is the practice valid?
HRDC Guideline 6, page 8

When a system, policy or practice is found to have an adverse impact, the employer is required to determine whether or not it is valid, that is:

• whether or not it is necessary for the safe and efficient operation of the business or organization; and
• there is no reasonable accommodation possible short of undue hardship.

It must be emphasized, however, that the Supreme Court has decreed that a bona fide occupational requirement cannot be claimed if an accommodation is possible.

3.1.3  Claiming a Bona Fide Occupational Requirement (BFOR)

In these cases, it is incumbent on the employer to provide the compliance officer with documentation, including an external opinion, in support of its contention that this practice is a bona fide occupational requirement. This is discussed below in subsection 4.4.

Claiming a BFOR may be particularly difficult to do when there is:

• first, a blanket application to all jobs without consideration to accommodation;
• second, no intent to regularly test employees once they have been hired; and
• third, many current employees with satisfactory employment records could not pass the test if it was applied to them.

3.1.4  Determining factors in validating a practice

In determining whether a practice is a barrier or is a valid requirement, some of the questions which may be posed include the following:

Is the practice legal?

Some practices or policies clearly do not conform to human rights or other laws. Overt or covert preferences which intentionally exclude — unless protected by a BFOR — are not valid. Thus, where the adverse affect is the result of personal or corporate preference, attitude, harassment, a hostile working environment or culture, the system or practice will have to be addressed quickly.

Is the practice applied consistently?

If a policy, practice or standard is applied inconsistently, particularly in regards to a specific group, it is unlikely to meet the validity test.

For example, are only persons with disabilities required to undergo pre-employment medical tests? Are developmental and training opportunities available only to managers and never to clerical staff? Are only women asked about their availability to work overtime?

Is the practice necessary for the safe and efficient operation of the organization?

The policy or practice must be related to the job, and accomplish a clear predictive or evaluative function. In other words, to demonstrate that the policy or practice is essential, there must be a demonstration that the requirement is consistent with the demands of the job.

For example, if an in-basket exercise is used to evaluate candidates for a middle management position, can it be shown that performance scores on the exercise correlate strongly with performance on the job?

Is accommodation possible?

As decreed by the Supreme Court, an employer may not justify a system or practice with adverse impact if it can be shown that a reasonable accommodation is possible.

For example, a word of mouth recruitment system may be shown to be valid in terms of providing a highly productive workforce even though it tends to exclude disproportionately those groups of individuals not already part of the workforce. Targeted recruitment carried out in tandem with word of mouth, however, may accommodate the affected group of individuals without creating undue hardship.

Has an alternative system been considered?

If there is an alternative system or practice with less or no adverse impact, the original system cannot be found to be valid. For example, specific task-related strength tests may have less adverse impact on women than standard dead weight lifting tests.

3.1.5  ESR in a public service context

In its paper on Shared Responsibilities, the Treasury Board Secretariat states that TBS, PSC and departments or agencies will each review employment systems under their respective administrations.

Because departments bear primary responsibility for fulfilling their obligations under the Act, the Commission must have confidence that individual departments understand the problems in their workforce, do a meaningful systems review and remove barriers where necessary.

It is not acceptable for a public service organization to claim that it cannot act on a specific problem because of certain governing practices from central agencies. Compliance review officers should not accept that a practice is necessarily barrier-free because it is a central agency policy.

Similarly, responsibility for barriers cannot be shifted to the Public Service Commission or the Treasury Board Secretariat.

For example, where departments have suggested that the PSC has failed to refer sufficient designated group candidates and this lies outside the responsibility of the department, compliance officers cannot accept this as a resolution of the situation. The same is true for non-delegated responsibilities such as the employment of senior management. One may accept such an explanation as an identified barrier if the evidence is there, but not as a justification. In these cases, it is incumbent on the department and the central agency involved to rectify the situation.

3.2   SHARES OF HIRING Assessment Factor: Where under-represented designated group members are receiving shares of hiring below external representation, did the review focus on recruitment, selection and hiring policies and practices, and to accommodation as it relates to these areas? 3.3  SHARES OF PROMOTION Where under-represented designated group members are receiving shares of promotions below internal representation, did the review focus on development, training and promotion policies and practices, and to accommodation as it relates to these areas; and did the review reveal clustering in lower levels of the examined occupational groups? 3.4  SHARES OF TERMINATION Where under-represented designated group members have shares of terminations that exceed internal representation, did the review focus on retention and termination policies and practices, and to accommodation as it relates to these areas?

3.4.1  Focusing the ESR

The results of the workforce analysis which identifies gaps in representation are the main ingredients which should drive the employment systems review. In order to obtain good results, it is important for employers to focus on shares of hiring, promotion and termination, as these relate directly to eight of the nine employment systems mentioned above. The ninth, accommodation, must be factored into every aspect of the employment systems review.

3.4.2  Accommodation

The requirement for accommodation obligates employers to adjust policies and practices so that no member of a designated group is unfairly prohibited from taking full part in the workplace. The Supreme Court has decreed that accommodation must take place to the point of undue hardship for the employer.

3.4.3  Examine shares of hiring, promotions and terminations

Findings with respect to shares of hirings, promotions and termination will reveal the following areas where the systems review should focus:

Hirings
HRDC Guideline 6, Part C, p. 15

If the shares of hiring of designated group members are lower than external representation, the review should focus on recruitment, selection and hiring practices. These could include issues such as:

• data on the number of designated group members who applied for positions, the number who were screened in, how many were interviewed and how many were subsequently hired;
• seniority and other next-in-line approaches;
• advertising, referrals, outreach activities;
• succession planning systems;
• physical accessibility of buildings.

Promotions
HRDC Guideline 6, Part C, p. 25

If the shares of promotions are lower than internal representation, then the review should examine development, training and promotion activities. This part of the review should also have determined whether or not designated group members are clustered in the lower levels of the occupational groups which have been examined.

Issues for review could include:

• the use of acting appointments and lateral moves;
• access to training and development opportunities;
• the criteria for the identification of high flyers;
• career counselling, mentoring activities;
• performance evaluation system.

Terminations
HRDC Guideline 6, Part C, p. 34

If shares of terminations are higher than internal representation, the review should focus on retention and termination policies and practices. These could include:

• harassment complaints and disciplinary measures;
• information from exit interviews and climate surveys;
• health benefits and bonuses;
• criteria for lay-off and termination, and last hired, first fired policies.

3.5.1  Report of findings

Section 17 of the Act and 11 of the Regulations require the employer to maintain appropriate records on the results of the employment systems review.

Based on the analysis of all relevant employment systems, policies and practices, the employer should have produced a report drawing conclusions to explain the under-representation found in each occupational group. The report should outline where barriers exist for members of each of the designated groups and include recommendations to eliminate them. The Compliance Review Officer will be required to assess these findings and come to a conclusion on whether or not they provide a reasonable explanation of the under-representation.

If this assessment factor is met, the systems review will then provide the basis for corrective measures to be outlined in the employment equity plan.

3.6.1  Reviewing new measures as they are introduced

It is necessary to determine whether or not the employment systems review has been kept up-to-date.

Every new human resource policy and practice proposed after the ESR should be reviewed as they are developed and during implementation for their potential impact on designated groups.

Some organizations do this by having those responsible for employment equity sign a human resource proposal before it receives final approval from senior management. Other organizations pre-test policies with designated group members by using focus groups and other testing methods. The process used should normally ensure that the initial assessment is done prior to implementation with follow-up to evaluate the actual impact once the measures are in place.

Compliance officers should be satisfied that employers have appropriate measures in place to ensure that this requirement will continue to be met.