Equity in WFA & SERLO / Équité dans le RE et le SEMPMD

Key Concepts & Legal Basis

Workforce Adjustment (WFA): In the federal public service, Workforce Adjustment (WFA) represents the mechanism by which the employer manages the reduction of its workforce. When the Deputy Head determines that the services of "some but not all" employees in a specific unit are no longer required, the Selection of Employees for Retention or Lay-Off (SERLO) process is triggered.

SERLO (Selection for Retention or Lay-Off): SERLO is the competitive administrative process which occurs during a WFA. It requires using a merit-based selection process governed by the Public Service Employment Regulations (PSER).For Employee Networks and equity-seeking groups, the SERLO process is an important area of concern. If "merit" criteria are defined too loosely, or if "asset criteria are implemented without an equity lens, the process can inadvertently perpetuate systemic barriers.

Regulatory and Legal Framework: To ensure SERLO processes do not create barriers for systemically marginalized communities, departments must adhere to the following:

• Public Service Employment Act (PSEA) s. 64: The authority to implement a WFA comes from the PSEA. Section 64 allows Deputy Heads to lay off employees due to lack of work, discontinuation of a function or transfer or work or funds. It confirms that layoffs are a management right, but the selection of individuals must be merit-based.

• Public Service Employment Regulations (PSER) s. 21: Once a reduction is announced, the PSER dictates how it will occur. Section 21 mandates that the selection of employees for retention be based on merit. It also requires a bias assessment of the selection method before the process begins.

• Employment Equity Act (EEA) s. 5: Requires the employer to identify and eliminate employment barriers against the four designated groups. This duty persists during downsizing.

• Canadian Human Rights Act (CHRA) s. 7 & 15: Prohibits adverse effect discrimination (where a neutral rule has a disproportionately negative impact on a protected group). This governs the application of operational requirements like availability or mobility.
• National Joint Council (NJC) Workforce Adjustment Directive: collective agreement provisions which outlines the roles and responsibilities of the employer and the rights of affected employees.

Defining Merit Criteria: In a SERLO, "merit" is defined by the Deputy Head through three components:

• Essential Qualifications: The baseline skills, knowledge, and abilities required to perform the duties of the remaining positions. These are non-negotiable and must be met by all employees being considered for retention. Example: Required certification, language proficiency, or technical ability directly tied to the job.

• Asset Qualifications: Additional skills or experience that may benefit the organization now or in the future. Asset criteria should be applied carefully to avoid perpetuating systemic barriers. If the asset requires prior experience in tasks typically linked to promotional opportunities, it may disadvantage equity groups historically excluded from such opportunities. Asset qualifications should emphasize transferable skills rather than experience gained solely through acting or developmental assignments. Example: Ability to lead projects (demonstrated through various contexts, not only acting roles).

• Organizational Needs: Strategic priorities identified by the organization that can legitimately influence retention decisions. These may include employment equity objectives, official language requirements, or commitments under land claims agreements. Organizational needs must be documented and applied consistently, based on current workforce data and legal obligations, not personal preference. Example: Retaining employees from designated employment equity groups to meet representation goals.

Bias Controls Across the SERLO/WFA Lifecycle

Stage	Official Activity (PSC/TBS)	Where Bias Can Enter (Official Framing)	Corrective Actions (Official Requirements)
Planing	Determine the desired current and future state of the organization; determine the affected part(s); identify positions and affected employees; notify OCHRO/TBS, bargaining agents, and employees.	Defining the affected part(s) at a level that is not functionally justified can isolate specific employees.	Document the functional rationale for the affected part(s) and link to business/HR plans; issue required written notifications to OCHRO/TBS, bargaining agents, and employees per SERLO steps.
Establishing the Merit Criteria	Establish the Statement of Merit Criteria: essential qualifications, asset qualifications, operational requirements, organizational needs.	Over‑tailored asset qualifications or experience statements that function as proxies for tenure can distort merit and exclude already‑qualified employees.	Write qualifications in plain, neutral, assessable language; distinguish essential vs asset; justify operational requirements; define organizational needs aligned to current and future state.
Conducting the Assessment	Determine assessment methods; complete Step 9: Identification of biases and barriers; conduct assessments with qualified assessors and respect duty to accommodate.	Use of subjective factors (e.g., undefined “fit” or “visibility”) introduces affinity bias and undermines fair assessment.	Apply structured tools (structured interviews, structured reference checks, standardized scoring) and accommodation guidance; ensure assessor competency and official language capacity; document the bias/barrier review before assessment.
Alteration	Administer alternation for opting or surplus employees within the core public administration at the same group/level or equivalent, subject to meeting essential qualifications and language requirements; options chosen within 120 days when no GRJO is provided.	Opaque “taps on the shoulder” and informal matching can exclude eligible employees; inconsistent application of equivalency rules creates unfair access.	Centralize and publicize alternation opportunities; apply equivalency criteria consistently; verify the employee meets the position’s essential qualifications and language profile before approving the alternation.
Selection, Notice and Reasons	Conduct selection for retention or lay‑off (SERLO); provide written notice; record reasons for selection; then administer Priority Administration for surplus/lay‑off entitlements in the proper order of precedence.	Relying on outdated workforce data to justify that representation meets organizational needs can misalign decisions with current Employment Equity Act obligations.	Use current employment equity workforce availability and representation data to inform organizational needs; ensure compliance with Appointment Policy obligations (employment equity, official languages, duty to accommodate); respect PSC priority entitlements and order of precedence.

Step	Process (official)	Equity Risk	Safeguards	Legal/Policy Requirements
1. Define the “Affected Part” of the Organization	• Establish the affected part(s) as part of SERLO planning (current & future state). • Identify positions and affected employees. • Notify OCHRO/TBS, bargaining agents, and employees.	If the affected part(s) are defined too narrowly without functional justification, selections can isolate specific employees or equity groups.	• Document the functional rationale tied to business/HR plans before assessment. • Use structured notifications and records.	“Step 2: Determine the affected part(s) of the organization.” (PSC, Selection of employees for retention or lay‑off: Guide for managers and HR specialists) [ceiu-seic.ca] — “Where the deputy head determines… that some but not all of the employees in any part of the deputy head’s organization will be laid off, the employees to be laid off shall be selected in accordance with the regulations of the Commission.” (PSEA, s.64(2)) [justice.gc.ca] — “Workforce adjustment… when it has been determined that a position is no longer required due to lack of work, discontinuance of a function, relocation, or an alternative delivery initiative.” (Canada.ca WFA overview) [canada.ca]
2. Establish Merit Criteria (SoMC)	Deputy Head determines qualifications, requirements, and organizational needs for the SERLO: • Essential qualifications (including official language proficiency) • Asset qualifications • Operational requirements • Organizational needs	• Over‑tailored asset qualifications or experience statements that act as proxies for tenure. • Operational requirements that create barriers.	• Write qualifications in plain, neutral, assessable language; distinguish essential vs. asset. • Justify operational requirements and define organizational needs aligned to the current/future state. • Respect duty to accommodate and employment equity obligations.	“The deputy head must determine (a) the essential qualifications… and any additional qualifications… as an asset; and (b) any relevant current or future operational requirements or needs of the organization.” (PSER, s.22(2)) — “Deputy heads must respect the duty to accommodate throughout the appointment process [and] respect employment equity obligations throughout the appointment process.” (PSC Appointment Policy) [syndicatafpc.ca] — “Organizational needs – employment equity, placing employees affected by workforce adjustment, respecting a land claims agreement, when they apply.” (VAC, How to read a job advertisement) — “Employers… have an obligation to adjust rules, policies or practices to enable everyone to participate fully… called the duty to accommodate.” (Canadian Human Rights Commission)
3. Conduct the Assessment	• Determine assessment methods (e.g., review of past performance, interviews, exams). • Step 9: Identify biases and barriers before applying any method. • Assess employees using structured tools; ensure assessor qualifications and official languages obligations are met.	Use of subjective factors (e.g., undefined “fit” or “visibility”) introduces affinity bias, undermining fair selection among already‑qualified employees.	• Apply structured tools (structured interviews, structured reference checks, standardized scoring). • Document the bias/barrier review prior to assessment. • Provide and implement accommodations; ensure assessor competence and official language capacity.	“The deputy head may… use any assessment method… such as a review of past performance and accomplishments, interviews and examinations.” (PSER, s.22(4)) — “Before using an assessment method, the deputy head must conduct an evaluation to identify whether the assessment method… includes or creates biases or barriers… and make reasonable efforts to remove or mitigate [them].” (PSER, s.22(5)) — “Step 9: Identification of biases and barriers.” (PSC SERLO Guide) [ceiu-seic.ca] — “Ensure that those conducting the assessment have the necessary competencies… to assess the qualifications.” (PSC Appointment Policy) [syndicatafpc.ca]
4. Determine Organizational Needs (Representation Analysis)	• Establish organizational needs; Employment Equity can be applied when justified. • Perform a representation gap analysis using current availability/representation.	Reliance on outdated 2021 workforce availability can misstate current gaps and embed bias in selections.	• Use current EE data (availability & representation) when defining organizational needs. • Where only older data exist, apply documented projection methodology (internal) to avoid fettering discretion; decisions must still rest on PSER s.22(2) and PSC Appointment Policy obligations.	“The deputy head must determine… operational requirements or needs of the organization.” (PSER, s.22(2)(b)) — “Organizational needs – employment equity… when they apply.” (VAC) — “Deputy heads must… respect employment equity obligations throughout the appointment process.” (PSC Appointment Policy) [syndicatafpc.ca] — “Public service‑wide initiatives on equity… representation and workforce availability reporting to address gaps.” (TBS Employment Equity Annual Report 2023–24) [canada.ca]
5. Selection and Notification	• Conduct SERLO selection; establish merit list and determine the cut‑off for retention vs. lay‑off. • Provide written notice to laid‑off and retained employees. • Record reasons for selection. • Administer priority entitlements.	A cut‑off line that produces adverse impact on a protected group without mitigation may contravene EE obligations and fairness principles.	• Conduct a GBA Plus/adverse impact review before issuing letters. • Use current EE data to confirm no disproportionate impact. • Issue PSER s.21 compliant notices; record the reasons for the selection (SERLO guide Step 14). • Manage priority entitlements per PSC (order of precedence).	“Provide written notice… Step 13; and record the reasons for the selection… Step 14.” (PSC SERLO Guide) [ceiu-seic.ca] — “A deputy head must, before laying off an employee, provide a written notice… including: (a) statement; (b) reason; (c) right to complaint; (d) date; (e) lay‑off date or later advice.” (PSER, s.21(1)(a)–(e)) [www150.statcan.gc.ca] — “Priority for appointment… shall be given… to a person laid off pursuant to subsection 64(1).” (PSEA, s.41(4)) [psacunion.ca]
6. Alternation	• Administer alternation for eligible opting or surplus employees within the core public administration. • Verify essential qualifications and official languages for the position to be alternated into; apply equivalency rules.	Opaque or informal matching (“hidden job market”) excludes eligible employees; inconsistent equivalency application produces unfair access.	• Centralize and transparently post alternation opportunities (departmental and GC‑wide forums). • Apply equivalency consistently; verify essential qualifications and official language profile before approval. • Offer meeting to explain denials.	“All departments or organizations must participate in the alternation process.” (NJC WFAD, s.6.3.1) [canada.ca] — “An alternation occurs when an opting employee… exchanges positions with a non‑affected employee… under Part VI.” (NJC WFAD, s.6.3.2) [canada.ca] — “The opting employee moving into the unaffected position must meet the requirements for appointment… including language requirements.” (NJC WFAD, s.6.3.7) [canada.ca] — “Alternation should normally occur at the same group and level… or equivalent (max rate of pay no more than 6% higher).” (NJC WFAD, s.6.3.9) [canada.ca] — “An alternation must occur on a given date… no ‘domino’ or ‘future considerations’.” (NJC WFAD, s.6.3.10) [canada.ca] — “Employees not in receipt of a GRJO have 120 days to consider the three options.” (NJC WFAD, s.6.1.2) [canada.ca]

Additional compliance highlights managers should document

• Official languages as essential: “The essential qualifications… including official language proficiency.” (PSER, s.22(2))
• Assessment competence: “Ensure that those conducting the assessment have the necessary competencies, including official language(s).” (PSC Appointment Policy) [syndicatafpc.ca]
• Duty to accommodate (disability/family status): “Employers… have an obligation to adjust rules, policies or practices… called the duty to accommodate.” (CHRC)
• GBA Plus in staffing/assessment: SERLO guide embeds Step 9: Identification of biases and barriers, and PSC planning commits to integrating GBA Plus to mitigate systemic barriers. [ceiu-seic.ca], [bunelaw.com]

---

Stage	Official activity (PSC/TBS)	Where bias can enter (official framing)	Corrective actions (official requirements)
1. Planning	Determine the desired current and future state of the organization; determine the affected part(s); identify positions and affected employees; notify OCHRO/TBS, bargaining agents, and employees.	Defining the affected part(s) at a level that is not functionally justified can isolate specific employees	Document the functional rationale for the affected part(s) and link to business/HR plans; issue required written notifications to OCHRO/TBS, bargaining agents, and employees per SERLO steps
2. Merit criteria	Establish the Statement of Merit Criteria: essential qualifications, asset qualifications, operational requirements, organizational needs	Over‑tailored asset qualifications or experience statements that function as proxies for tenure can distort merit and exclude already‑qualified employees	Write qualifications in plain, neutral, assessable language; distinguish essential vs asset; justify operational requirements; define organizational needs aligned to current and future state
3. Assessment	Determine assessment methods; complete Step 9: Identification of biases and barriers; conduct assessments with qualified assessors and respect duty to accommodate	Use of subjective factors (e.g., undefined “fit” or “visibility”) introduces affinity bias and undermines fair assessment	Apply structured tools (structured interviews, structured reference checks, standardized scoring) and accommodation guidance; ensure assessor competency and official language capacity; document the bias/barrier review before assessment
4. Alternation	Administer alternation for opting or surplus employees within the core public administration at the same group/level or equivalent, subject to meeting essential qualifications and language requirements; options chosen within 120 days when no GRJO is provided	Opaque “taps on the shoulder” and informal matching can exclude eligible employees; inconsistent application of equivalency rules creates unfair access	Centralize and publicize alternation opportunities; apply equivalency criteria consistently; verify the employee meets the position’s essential qualifications and language profile before approving the alternation
5. Selection, notice, reasons	Conduct selection for retention or lay‑off (SERLO); provide written notice; record reasons for selection; then administer Priority Administration for surplus/lay‑off entitlements in the proper order of precedence	Relying on outdated workforce data to justify that representation meets organizational needs can misalign decisions with current Employment Equity Act obligations	Use current employment equity workforce availability and representation data to inform organizational needs; ensure compliance with Appointment Policy obligations (employment equity, official languages, duty to accommodate); respect PSC priority entitlements and order of precedence

Intersectionality and GBA Plus Considerations in SERLO/WFA

Designated group / policy lens	Official obligations and risks	Required controls (official)
Persons with Disabilities	Duty to accommodate must be respected throughout assessment; operational requirements (e.g., travel, hours) must be justified as essential; accommodations must not be treated as performance deficits	Apply PSC Guide for Assessing Persons with Disabilities and accommodation processes; review each operational requirement for necessity; ensure accessible assessment methods and assessor competency
Members of racialized groups	The Employment Equity Act obliges employers to identify and correct conditions of disadvantage and maintain proportional representation; using past access to “acting” experience as an asset can reflect past inequities if not tied to duties	Define qualifications by the competency/ability required rather than specific past opportunities; use current workforce availability and representation data when applying organizational needs in SERLO
Indigenous peoples	EE obligations apply; organizational needs may be used to support representation consistent with current availability/representation; assessment must remain fair and consistent with PSC appointment requirements	Align organizational needs to current EE data; apply structured, unbiased assessment methods; respect official languages and duty to accommodate during SERLO
GBA Plus (enterprise lens)	Departments are expected to integrate GBA Plus in planning and operations, including staffing and assessment, to identify and mitigate systemic barriers	Include a documented GBA Plus check in SERLO planning and at Step 9: Identification of biases and barriers; leverage CSPS/PSC guidance and training to strengthen capacity

Systemic Risk: Fettering of Discretion via Outdated Data: A critical legal concept in administrative law is "Fettering of Discretion." This occurs when a decision-maker rigidly applies a rule or outdated data source without considering current evidence or judgment.

The Data Lag (2021 vs. 2025): Using 2016 or 2021 Census data to determine workforce availability (WAE) in 2025 creates a "built-in bias".

* The Reality: The labour market for Racialized and Indigenous populations has grown significantly since 2021.

* The Risk: Relying on unadjusted 2021 data understates under-representation. A manager might believe a team is "representative" based on 2021 numbers, while in 2025 terms, a significant gap exists.

* Legal Implication: Refusing to adjust values despite evidence of growth fetters discretion and undermines compliance with the Employment Equity Act.

4.2 Correction Factors for 2025

To avoid discriminatory effects, the following correction factors should be applied to Attainment Rates (AR) or Workforce Availability (WFA) estimates during SERLO planning:

* Racialized Groups: Divide Attainment Rate by 1.25.

* Indigenous Groups: Divide Attainment Rate by 1.10.

5. Data Methodology: Attainment Rates vs. Gaps

How data is visualized drives decisions. Departments often use raw "representation gaps" (number of people), which distorts the reality for smaller groups.

The Theatre Analogy

* Scenario A (Small Group): A theatre has 10 seats. 0 are occupied. The Gap is 10. The Attainment Rate is 0%.

* Scenario B (Large Group): A theatre has 300 seats. 290 are occupied. The Gap is 10. The Attainment Rate is 97%.

Impact: Both have a "gap of 10," but Scenario A represents a total exclusion. Using raw gaps hides the severity of under-representation for Indigenous and smaller racialized groups. SERLO decisions must be based on Attainment Rates (how full the theatre is), not gaps.

Public Service Employment Regulations (PSER), Sec. 21

Mandates written notice of lay-off or retention and rights to complaint under the Public Service Employment Act.

Public Service Official Languages Exclusion Approval Order (PSOLEAO)

Enables non-imperative bilingual staffing with agreement to become bilingual within 2 years.

Employment Equity Act & WAE/Attainment Rates

Employers must compare workforce representation with labour market availability or Work Force AVailability and aim for 100% Attainment Rates; usage of 2021 data is mandatory for compliance.

Why Equity in WFA/SERLO Matters

• Career‑defining and potentially traumatic for affected employees
• Systemic disparities if racialized or Indigenous employees are disproportionately laid‑off
• Risk of grievances, complaints, and legal action if equity obligations are ignored
• Advances representation goals and strengthens psychological safety
  • • e SERLO plans only with equity safeguards; provide oversight throughout. ----

Data Challenges & Adjustments

• Departments often rely on 2021 WAE data, which under‑represents current labour market; this underestimates under-representation. [canada.ca], [canada.ca]
• Use Attainment Rates—Representation ÷ WAE × 100—as comparison metrics.
• Mitigate outdated data by projecting:
  • × 1.25 for racialized groups and × 1.10 for Indigenous groups when only 2021 data is available
    s: Approve SERLO plans only with equity safeguards; provide oversight throughout. ----

Equity Safeguards in SERLO

1. Use of WAE & AR Data

Before making any decisions, analyze under-representation by group and classification using projected WAE and AR.

2. Structured Merit Assessment

Implement documented assessment grids aligned with SERLO criteria. Adjust for past barriers—e.g., limited access to acting roles, language training—and ensure accommodations are applied fairly.

3. Organizational Equity Needs

When AR < 100%, explicitly include EE group membership as an organizational need per PSC SERLO Guide (Step 7). [canada.ca]

4. Language Flexibility via PSOLEAO

Where operationally feasible, appoint unilingual employees non-imperatively with a funded, milestone-based language training plan up to 2 years. [canada.ca], [canada.ca]

5. Alternation & Voluntary Departure

Promote alternation transparently and track participation and outcomes by EE group, to avoid informal access inequities. [njc-cnm.gc.ca], [canada.ca]

6. Monitoring & Reporting

Track who is screened in/out and retained by group and classification; use TBS Employment Equity dashboards and departmental reports involving representation trends. [canada.ca]

7. Bias & Barrier Mitigation

Document every mitigation action per Step 9 in the PSC Guide. Include language in selection criteria descriptions and record justification for equity objectives.

---

Roles & Responsibilities

• Employee Networks & Unions: Provide lived-experience insight, identify systemic patterns, advise on trauma-informed design.
• HR/LR: Ensure compliance with PSER, guide managers in structured, equitable processes, document barrier mitigations.
• Executives: Approve SERLO plans only with equity safeguards; provide oversight throughout.

---

Key Questions for Managers

1. What’s the projected AR/WAE by EE group and classification?
2. Have we embedded documented EE organizational needs in criteria?
3. What bias checks and barrier mitigations were conducted (PSC Step 9)?
4. Where can PSOLEAO and language training be used?
5. Are alternation and voluntary departure options visible and equitable?
6. Is data tracked to show selection outcomes by EE group?

---

Recommendations

• Update WAE Projections: Use formula-based projections when 2021 data is dated.
• Adopt Bias-Resistant Grids: Record all documentation to enable recourse.
• Embed EE Needs Explicitly: Where appropriate, EE membership should be a qualification.
• Use Non-Imperative Staffing: Include strong language training plans and milestones.
• Enhance Alternation & Departure Transparency: Use centralized platforms and monitor equity outcomes.
• Institute Regular Reviews: Provide AR/WAE briefings and track plans.
• Document for Recourse: Keep records of criteria, mitigations, and compliance measures.

---

Links & Resources

• PSC Selection for Retention or Lay‑Off Guide (2025) [canada.ca]
• PSER Section 21: Notice requirements for lay‑off and retention [laws-lois....tice.gc.ca]
• NJC Workforce Adjustment Directive (Full text & flowchart) [njc-cnm.gc.ca]
• TBS Employment Equity Annual Report (2023–24) [canada.ca]
• TBS WAE & Employment Equity Dashboards [canada.ca],
• PSOLEAO FAQ: Exclusions and bilingual staffing [canada.ca], [canada.ca]
• Directive on Official Languages for People Management [tbs-sct.canada.ca]