Marginal note:Employer’s duty

5. Every employer shall implement employment equity by

• (a) identifying and eliminating employment barriers against persons in designated groups that result from the employer’s employment systems, policies and practices that are not authorized by law; and

• (b) instituting such positive policies and practices and making such reasonable accommodations as will ensure that persons in designated groups achieve a degree of 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.

Marginal note:Employer not required to take certain measures

6. The obligation to implement employment equity does not require an employer

• (a) to take a particular measure to implement employment equity where the taking of that measure would cause undue hardship to the employer;

• (b) to hire or promote persons who do not meet the essential qualifications for the work to be performed;

• (c) with respect to the public sector, to hire or promote persons without basing the hiring or promotion on merit in cases where the Public Service Employment Act requires that hiring or promotion be based on merit; or

• (d) to create new positions in its workforce.

Marginal note:Employment of aboriginal peoples

7. Notwithstanding any other provision of this Act, where a private sector employer is engaged primarily in promoting or serving the interests of aboriginal peoples, the employer may give preference in employment to aboriginal peoples or employ only aboriginal peoples, unless that preference or employment would constitute a discriminatory practice under the Canadian Human Rights Act.

Marginal note:Certain rights not employment barriers

• 8. (1) Employee seniority rights with respect to a layoff or recall under a collective agreement or pursuant to the established practices of an employer are deemed not to be employment barriers within the meaning of this Act.

• Marginal note:Other seniority rights

  (2) Unless they are found to constitute a discriminatory practice under the Canadian Human Rights Act, employee seniority rights other than those referred to in subsection (1), including rights acquired under workforce adjustment policies implemented when an employer is downsizing or restructuring, under a collective agreement or pursuant to an established practice, are deemed not to be employment barriers within the meaning of this Act.

• Marginal note:Adverse impact on employment opportunities

  (3) Notwithstanding subsections (1) and (2), where, after a review under paragraph 9(1)(b), it appears that a right referred to in either of those subsections that is provided for under a collective agreement may have an adverse impact on the employment opportunities of persons in designated groups, the employer and its employees’ representatives shall consult with each other concerning measures that may be taken to minimize the adverse impact.

• Marginal note:Public sector

  (4) The following are not, in relation to the public sector, employment barriers within the meaning of the Act, namely,

  • (a) priorities for appointment under the Public Service Employment Act or regulations made by the Public Service Commission; and

  • (b) workforce adjustment measures established by the Treasury Board, including measures set out in agreements relating to workforce adjustment, or by the Public Service Commission or any other portion of the public sector referred to in paragraphs 4(1)(c) and (d).