Bias-free hiring:Policy on removing the

“Canadian experience” barrier

What we will cover:

• The human rights system in Ontario• The Ontario Human Rights Code• Human rights and hiring practices • Policy on “Canadian experience”

Human rights system in Ontario

ONTARIO HUMAN RIGHTS COMMISSION

HUMAN RIGHTS LEGAL SUPPORT CENTRE

HUMAN RIGHTS TRIBUNAL OF ONTARIO

Commission mandate

Public Education

Monitoring

Policy

Public Inquiries

?

Outreach

Ontario Human Rights Code

• Code’s Preamble recognizes dignity and worth of every person and provides for equal rights and opportunities

• Part I of the Code: … lists the 5 social areas …and the 17 grounds of discrimination

Social areas

• Services• Housing• Contracts• Employment• Vocational associations

Grounds• Race• Ancestry• Place of origin• Colour• Ethnic origin• Citizenship• Creed (religion)• Age• Gender identity• Gender expression

• Sex/pregnancy• Sexual orientation• Family status• Marital status• Receipt of public assistance

(accommodation only)• Record of offence

(employment only)• Disability

Discrimination under the Code

Discrimination includes

• Not individually assessing the unique merits, capacities and circumstances of a person

• Making stereotypical assumptions based on a person’s presumed traits

• Having the impact of excluding persons, denying benefits or imposing burdens

Code protections The Code prohibits:

• Direct discrimination • “Adverse effect” or “constructive”

discrimination • Systemic discrimination• Workplace requirements/rules that are not

bona fide• Failure to accommodate

Code protections

• Section 5 of the Code prohibits discrimination in employment

• Section 6 of the Code prohibits discrimination with respect to membership in regulatorybodies

Setting job requirements

• Make sure that job requirements are reasonable and made in good faith

• If a person is prevented from meeting job requirements for a reason that is related to a ground in the Code, human rights law looks at whether these requirements are reasonable and bona fide

Advertising jobs

• Under section 23(1) of the Code, the right to equal treatment in employments is infringed when a job posting or advertisement directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination

Removing the Canadian experience barrier

Background to policy:• Inter-disciplinary research• Public survey• Consultation with employers, regulatory

bodies, government and regulatory bodies

Job requirements/ads

• Code grounds potentially engaged by a “Canadian experience” requirement:

• Race • Place of origin• Ancestry • Ethnic origin• Colour

OHRC’s findings• Recent immigrants to Canada face high rates

of both under-employment and unemployment

• Requirement for “Canadian experience” is a major barrier to employment and to professional accreditation

• OHRC’s findings consistent with those of Statistics Canada

OHRC’s position• A strict requirement for “Canadian

experience” is discriminatory on its face and can only be used in limited circumstances

• The onus will be on employers and regulatory bodies to show that a requirement for Canadian experience is a bona fide requirement, according to an established legal test

Legal test• Where an employer or regulatory body wants to try

to justify a discriminatory requirement, it has to show that the requirement:

1) was adopted for a purpose or goal that is rationally connected to the function being performed

2) was adopted in good faith, in the belief that it is needed to fulfill the purpose or goal, and

3) is reasonably necessary to accomplish its purpose or goal, because it is impossible to accommodate the claimant without undue hardship

Organizational responsibility

• Employers and regulatory bodies have legal responsibility under the Code to ensure that employment and accreditation practices don’t

result in discrimination

• Policy provides guidance to organizations on how to act in accordance with human rights principles

Best practices• Separate job requirements that are “legitimate” from

those that are simply “nice to haves” and only require the level of proficiency that is necessary to do the job in question

• List these competencies in job description so that candidates can demonstrate how their skills match up to the requirements

• Consider all relevant work experience regardless of where it was obtained

Best practices

• Assess candidates on an individualized basis

• Decision-making processes should be as transparent as possible

• Give candidates opportunity to demonstrate their competencies through an interview, practical test, simulated job setting, or employment on a contract or probationary basis

Conclusion• Employment and accreditation requirements should

be clear, reasonable, genuine and directly related to performing the job or receiving professional accreditation

• “Canadian experience” requirements will contravene the Code where an employer or regulatory body cannot show that they are bona fide (legitimate) in accordance with the established legal test

Coming soon: • Webinar on policy• eLearning modules on the “Canadian

experience” policy – separate modules for:• newcomers • employers • employment agencies

• Videos for employers (in collaboration with Maytree)

• Will be posted on the OHRC website: www.ohrc.on.ca