Appendix A

Canadian law clearly recognizes the right to equality of people, prohibits discrimination on a variety of grounds, and requires that barriers to employment be identified and removed, and that accommodations be made for members of the four designated employment equity groups. This appendix provides further information on the legal foundation for fair assessment in a diverse work place.

1. Canadian Charter of Rights and Freedoms (1982)¹

The Canadian Charter of Rights and Freedoms provides for the following equality rights:

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (Section 15 (1), (2)).

In addition, Section 27 specifies that: "This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians."

The Charter and the Acts below can be found on the Justice Department Web site.

2. Official Languages Act (1988)

One purpose of the Official Languages Act is to ensure the equality of status and equal rights and privileges in the use of English and French in federal institutions. Accordingly, Section 39 (1)(a) specifies that: "The Government of Canada is committed to ensuring that English-speaking Canadians and French-speaking Canadians, without regard to their ethnic origin or first language learned, have equal opportunities to obtain employment and advancement in federal institutions."

3. Canadian Multiculturalism Act (1988)

The Canadian Multiculturalism Act (CMA) is "an Act for the preservation and enhancement of multiculturalism in Canada." While confirming the constitutional rights of Aboriginal peoples and the status of Canada's two official languages, Section 3 (1)(a) of the Act declares it to be the policy of the Government of Canada to "recognize and promote the understanding that multiculturalism reflects the cultural and racial diversity of Canadian society and acknowledges the freedom of all members of Canadian society to preserve, enhance and share their cultural heritage." As well, the Government of Canada is committed to a policy of eliminating any barriers to the equitable participation of individuals and communities of all origins in shaping all aspects of Canadian society (Section 3(1)(c)), and ensuring individuals receive equal treatment and equal protection under the law, while "respecting and valuing their diversity" (Section 3(1)(e)).

The CMA declares that all federal institutions will as a matter of policy "ensure that Canadians of all origins have an equal opportunity to obtain employment and advancement in those institutions" (Section 3 (2)(a)).

4. Employment Equity Act (1995)

The purpose of the Employment Equity Act (EEA) 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" (Section 2).

The EEA requires employers to identify and remove barriers to the employment of persons in the four designated groups, and to institute positive policies and practices and make reasonable accommodations to ensure that persons in the four designated groups achieve representation in the employer's workforce proportionate to their labour market availability (Section 5).

5. Canadian Human Rights Act (1998)

The purpose of the Canadian Human Rights Act (CHRA) is: ". . . to give effect . . . to the principle that all individuals should have the opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted" (Section 2).

As described in its purpose, the Canadian Human Rights Act (CHRA) stresses the obligation to provide accommodations, commonly referred to as "the duty to accommodate."

The CHRA establishes an exception to a finding that a practice is discriminatory if it is based on a "bona fide occupational requirement" (BFOR) (Section 15(1)(a)). However, for a practice to be considered to be based on a BFOR, "it must be established that accommodation of the needs of an individual or class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost" (Section 15(2)).

Supreme Court rulings have further defined the employer's obligations for providing accommodations. The Meiorin² decision established a test to determine if an employment standard is a BFOR (i.e., considered an exception to a finding of discrimination and thus permissible). The employer must be able to show that: 1) the purpose of the standard or requirement is rationally connected to the performance of the job; 2) it was adopted in good faith ("bona fide") in the belief that it was necessary to accomplish the purpose; and 3) the requirement is reasonably necessary to accomplish the purpose for which it was adopted. The employer must show that the requirement is not excessive and that accommodation would result in undue hardship taking into consideration health, safety and cost. If the discriminatory requirement meets these three criteria, it is considered a BFOR and can be maintained. It is important to note that the term "standards" used in the context of the Meiorin decision includes qualifications set out in statements of qualifications.

Further information on bonafide occupational requirements and on the duty to accommodate is available from the Canadian Human Rights Commission.

6. Public Service Employment Act (1993)³

The Public Service Employment Act (PSEA) governs employment in the Public Service of Canada. A cornerstone of the PSEA is merit; that is, in federal organizations subject to the PSEA, people are to be appointed to positions based on their qualifications. An intended result of applying merit is a federal workforce that is competent, non-partisan, and representative of the Canadian public.

Section 10(1) of the PSEA prescribes that "appointments to or from within the Public Service shall be based on selection according to merit." This is known as "relative merit," indicating that the person appointed must be the person who is the best qualified from among those who participate in a selection process.

The PSEA also provides for what is known as "individual merit." Under "individual merit," candidates are assessed against a "standard of competence . . . rather than . . . against the competence of other persons" (Section 10(2)). "Individual merit" is applied only in circumstances prescribed by the Public Service Employment Regulations.

Whether relative or individual merit is applied, processes which accurately assess the qualifications of diverse candidates best respect merit.

The PSEA also specifies that assessment of any qualification, except language, is to be conducted in either English, or French, or in both official languages, at the option of the candidate (Section 16(2)).

7. Standards for Selection and Assessment (2001)

Under the existing PSEA, the Public Service Commission is responsible for establishing standards that govern how candidates are selected and assessed.⁴ Section 12(3) of the PSEA, prohibits discrimination in the prescription of the standards, against any person by reason of race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability or conviction for an offence for which a pardon has been granted.

In the Standards for Selection and Assessment, the Public Service Commission describes four generic standards that apply to selection and assessment. Standard 3 provides for alternative assessment methods in certain circumstances to allow all candidates to be assessed in a way that preserves merit:

Assessment methods must treat all candidates in an equitable and non-discriminatory manner. Equitable assessment does not necessarily require the use of the same assessment methods or sources of information for all candidates, rather, accommodation of a candidate who is a member of a designated group ensures that each candidate is assessed according to his or her own personal characteristics rather than presumed group characteristics. . . . In all cases, the use of different assessment methods or sources of information for different candidates must be justified on the basis that such differential usage provides for a more accurate assessment and that the information gathered from these different methods or sources is comparable.

The Standards for Selection and Assessment can be found on the Public Service Commission Web site.

¹ The equality provisions of the Charter came into force in 1985.

² British Columbia vs. British Columbia Government and Service Employees' Union (BCGSEU) (Sept. 1999), known as "Meiorin".

³ Bill C-25, the Public Service Modernization Act, was tabled before Parliament, February 6, 2003. Once passed into law it will, inter alia, replace the old PSEA.

⁴ Bill C-25, as tabled before Parliament February 6, 2003, would transfer the authority to establish standards from the Public Service Commission to the employer, Treasury Board.