Canadian workers are protected from discrimination during the entire hiring process. Though employers should use the recruitment stage to determine the best candidate for the position, they cannot use the process to get information that relates to a protected ground under the Human Rights Code (such as age, citizenship, ethnic origin, creed, disability, family status, gender identity, sex, a record of offences, sexual orientation, etc.). Such information should not play a role in their ultimate hiring decision.
There are times when employers can ask for information about an applicant that relates to a ground of disability. Information and documents that relate to a ground of disability are often referred to as sensitive information. Ontario's Human Rights Commission recommends only requesting sensitive information after making an offer of employment that is conditional on the employee meeting such bona fide occupational requirements. Examples of information deemed to be sensitive include: driver's licence, birth certificate, work authorization issued by Immigration Canada, educational or professional credentials, social insurance number, information about health or age for benefit plans, police record checks, drug and alcohol testing, and accommodation needs.
Bona fide occupational requirement is legalese for an essential job requirement. For example, a bona fide occupational requirement to be a truck driver is to have a driver's license. Though that might discriminate against people who have disabilities that limit their ability to drive, it is acceptable because it is an essential part of the job and workplace safety. The courts have set out a two-part test to determine whether a bona fide occupational requirement exists:
- The employer must establish that the job requirement was imposed honestly, in good faith, and in the belief that the requirement is rationally connected to the job performance and not for some ulterior motive related to a protected ground
- The employer must establish that the job requirement is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, their fellow employees, and the general public
Kartuzova v HMA Pharmacy Ltd. (2012 HRTO 328) is a Human Rights Tribunal of Ontario decision that provides a good example of an employer discriminating against the applicant in the recruitment stage. In that case, in an early stage of the interview, the employer said "we will hire you" to the applicant. The employer then went on to ask about the applicant's family status, marital status, and how she came to Canada. These questions changed the mood of the interview and ended it abruptly. When the applicant did not get the job, she filed a complaint with the tribunal, assuming her answers to the personal questions lost her the job. The tribunal agreed with the applicant, finding that the employer discriminated against her, violating Ontario's Human Rights Code. The tribunal awarded the applicant $4000 in damages.
Best practices to avoid discrimination complaints during the recruitment stage
The recruitment stage can be a complicated process. Below is a list of suggestions that will help reduce the chance of facing a discrimination complaint related to the recruitment stage. It is not legal advice nor is it guaranteed to result in no discrimination complaints of your recruitment process. It is a list of best practices.
- Advertise your job posting widely and make the medium of posting accessible
- Avoid including discriminatory language in the job posting and the interview
- Have a multi-person panel conduct formal interviews with the panel reflecting the diversity available in your organization
- Give all interviewers human rights sensitivity training before they conduct the interview
- Develop a set of interview questions that the panel will ask all applicants
- Base the interview questions on the essential duties and bona fide occupational requirements
- Ensure that your interview questions comply with the applicable Human Rights Code and avoid asking questions requesting sensitive information unless it is necessary
- Create an answer guide to your interview questions showing desired answers, along with a marking scheme, which each member of the interview panel uses to record and score each candidate
- Determine the essential work qualifications that you might eliminate candidates on
- Be willing to give unsuccessful candidates constructive feedback on their interview addressing the non-discriminatory reasons that you used to determine to hire another applicant
- Accept all reasonable accommodation requests during the hiring process
How Suzanne Desrosiers Professional Corporation can help
Suzanne Desrosiers Professional Corporation can help your interviewers through several HR training seminars. Notably, we offer a seminar on human rights sensitivity. You can also contact our employment lawyers if you have or are faced with a discrimination during the recruitment stage complaint by calling us at (705) 268-6492 or emailing us at info@sdlawtimmins.com.