Staffing options to support employment equity, and diversity and inclusion, under the Public Service Employment Act – Questions and answers

Yes. Employment equity is linked to obligations under the Employment Equity Act for the 4 designated groups: women, Indigenous peoples, persons with disabilities and members of visible minorities. Treasury Board Secretariat provides each organization with their workforce availability benchmarks. Workforce availability is calculated based on census and Canadian Survey on Disability data and takes into consideration factors such as citizenship, location, working age (15 to 64) and education specific to the public service.

Diversity and inclusion has a broader and more ambitious scope that includes supporting and making improvements for a diverse, inclusive and culturally competent workplace. Diversity may be used to address documented underrepresentation in other groups or within subgroups of the 4 designated groups (for example, persons with an intellectual disability or members of the Black community). Departments and agencies may set their own diversity and inclusion goals taking into consideration the degree of underrepresentation and availability of qualified people in the workforce. Also, departments and agencies need to document and support any numerical goals established with relevant data to demonstrate disadvantage.

For questions on workforce availability and setting numerical goals, please send your inquiry to the Office of the Chief Human Resources Officer at wpp-ppt@tbs-sct.gc.ca.

To address underrepresentation, the Public Service Employment Act includes provisions that enable hiring managers to:

• limit and expand the area of selection to designated groups (section 34)
• establish and apply an employment equity organizational need (section 30)
• use external and internal non-advertised appointment processes to appoint designated group members (if the decision is in line with the deputy head’s direction on the use of advertised and non-advertised appointment processes)

Refer to the Public Service Commission’s guidance on Employment Equity – Leveraging Staffing Options for Hiring Managers for information on the staffing measures.

It depends which staffing measure departments and agencies use:

• limiting and expanding the area of selection: no; this provision may only be used to address underrepresentation of designated groups under the Employment Equity Act
• establishing and applying an organizational need: yes; see question 5
• using a non-advertised appointment process: yes; see question 9

No. Departments and agencies may restrict or expand the area of selection to address underrepresentation at the employment equity group level only given the wording in the Public Service Employment Act that refers to designated groups within the meaning of section 3 of the Employment Equity Act, that is, women, Indigenous peoples, persons with disabilities, and members of visible minorities.

Yes. Departments and agencies may target subgroups to address diversity goals, or in support of special programs to address a known barrier that has been documented and creates a disadvantage.

Departments and agencies should have a rationale and be able to provide supporting evidence to justify the decision to advance equality for these groups. Some examples of evidence:

• statistical evidence of underrepresentation
• testimonials with demonstrated evidence of underrepresentation through an Employment Systems Review
• other sources of information such as reports, studies (accessibility benchmark), Government of Canada commitment

While it is possible to open the area of selection to the designated group in accordance with the Employment Equity Act and apply an organizational need at the subgroup level for diversity and inclusion objectives, departments and agencies should be cautious, as this may create inconsistency. For example, if a department or agency restricts the area of selection to members of visible minorities and applies an organizational need to increase the representation of the Black community, there is a potential issue for members who may have qualified in the process but were not chosen because they do not belong to the Black community.

Given the incompatibility, you may wish to consider the impact this may have on others who were excluded from the selection process, and expand the intent of the process (for example, by prioritizing the hiring of Black candidates, but also leveraging the process to hire other visible minorities).

If the decision is to target a subgroup, there needs to be a strong justification to advance substantive equality of the subgroup, supported by clear evidence, as this may raise false expectations for other members of the designated group applying for the position.

By putting in place measures to prevent the disadvantage of one subgroup, there is a risk of creating a disadvantage for another subgroup. The risk may be mitigated by informing candidates of the intent of the appointment process and the preference for selection of candidates in the advertisement.

When an appointment is made in accordance with an employment equity program, you must consider persons with a priority entitlement who have self-declared as members of an employment equity group to which the program applies. Persons with a priority entitlement at the group level, and not at a subgroup level, are to be considered, given the wording in the Public Service Employment Regulations that refers to designated groups within the meaning of section 3 of the Employment Equity Act (women, Indigenous peoples, persons with disabilities, and members of visible minorities). 

Consistent with the purpose of the Employment Equity Act, an employment equity program would generally refer to positive policies, practices and measures in place in a department or agency, such as elements of an employment equity or human resources plan, designed to address identified underrepresentation of a designated group. Deputy heads are responsible for developing their own employment equity programs.

An employment equity program is required when using section 3 or paragraph 4(1)(c) of the Public Service Employment Regulations to appoint a member of an employment equity group without considering statutory or regulatory priority persons, unless those persons with priority entitlement are from the group to which the program applies. Here are various scenarios to illustrate this requirement.

• Scenario 1: An employment equity program has been established for persons with disabilities, and the hiring manager decides to have a targeted area of selection for persons with disabilities.
  
  The hiring manager only needs to consider persons with a priority entitlement who have self-declared as a member of the persons with disabilities group.

  
  

• Scenario 2A: An employment equity program has been established for persons with disabilities, and the hiring manager wants to use an employment equity organizational need to fill the position with a person with a disability.
  
  The hiring manager only needs to consider persons with a priority entitlement who have self-declared as a person with disabilities.

  
  

• Scenario 2B: None of the persons with a priority entitlement and candidates who have self-declared as persons with disabilities qualified. The hiring manager wants to continue with the remaining candidates in the selection process.
  
  The hiring manager informs the Public Service Commission of the results and their intention to continue the selection process with the remaining candidates. In this case, the hiring manager must consider all persons with a priority entitlement.

  
  

• Scenario 3: The department or agency does not have an employment equity program.
  
  Because there is no employment equity program and persons with a priority entitlement only need to meet essential qualifications, the hiring manager must consider all persons with a priority entitlement.

Yes. Departments and agencies may use non-advertised appointment processes to address Employment Equity Act obligations when there is underrepresentation, or to address diversity and inclusion hiring goals. Deputy heads may wish to include considerations of employment equity, diversity and inclusion, or special programs when establishing their direction on the use of advertised and non-advertised appointment processes.

Yes. Based on solid methodology, deputy heads may use the staffing measures provided in the Public Service Employment Act to address short-term forecasted representation gaps due to anticipated reduction, workforce expected turnover or changing demographics. 

Refer to the Public Service Commission’s guidance on Employment Equity – Leveraging Staffing Options for Hiring Managers for more information.

Yes. Deputy heads may set current and future needs to increase diversity within their organization’s workforce, and these targets may be greater than workforce availability. This diversity objective should be linked to an approved deputy head strategy and based on supporting evidence and clear empirical data.

This is distinct from the Public Service Employment Act measures to implement obligations under the Employment Equity Act. When workforce availability benchmarks have been reached or surpassed, and there are no current or forecasted situations of underrepresentation, deputy heads are deemed to have met their employment equity goals and may no longer use the staffing measures provided under the Public Service Employment Act for employment equity purposes.

No. The information collected through the self-declaration form on employment equity subgroups can only be used for statistical purposes.

When an organizational need for diversity and inclusion is justified, established and applied, to support the broader goal of diversity, it must be assessed as any other merit criterion. To be satisfied that the individual is a member of an equity seeking group, departments and agencies can consider the following options: