September 25, 2013

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Legal Barriers to Recruitment

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Agenda

Human Rights

Corporate Culture / “Fit” Assessment

Reference Checking

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Human Rights

Human rights must be taken into consideration in all aspects of the recruitment process – including reviewing resumes and pre-screening!

Human rights considerations apply even before the individual is an employee

All employment interviews are subject to the requirements of provincial and federal human rights legislation

Human rights legislation has been designed to protect candidates from discrimination on the basis of any prohibited grounds

For example, section 5(1) of the Ontario Human Rights Code prohibits discrimination in employment on the grounds of:

Race, ancestry, place of origin colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status, and disability

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Human Rights (cont’d)

Prohibited grounds of discrimination

Vary by jurisdiction

Some notable differences:

British Columbia – Political beliefs

Alberta – Source of income

Nova Scotia – Irrational fear of contracting an illness or disease

See handout

So you know not to ask about race, religion, and family obligations, but . . .

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Human Rights (cont’d)

Did you know . . .

Request for social insurance numbers is prohibited since it reveals information about place of origin or citizenship (offer of employment can be made conditional upon eligibility to legally work in Canada)

Questions regarding specific educational institutions may reveal a candidate’s religious affiliations (i.e. attended a Catholic high school) and are therefore prohibited

Inquiring into a candidate’s past criminal record is prohibited unless the question relates to offences for which a pardon has not been granted

Asking for a candidate’s driver’s license is prohibited since it reveals the candidate’s age

Casually discussing a candidate’s family and asking if he / she has any children may be a violation of the Code, even if this information is not taken into account and the applicant is offered the job

Asking about a candidate’s sexual orientation is not allowed during an interview, even if the employer is a religious, philanthropic, educational, fraternal or social organization

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Human Rights (cont’d)

“Canadian Experience”

On July 16, 2013, the OHRC released a policy on removing the “Canadian experience” barrier

Some employers have used the “Canadian experience” requirement as a short-cut to screening out recent immigrants

The Commission has indicated that requiring a job candidate to have Canadian work experience is prima facie discrimination (except in very limited circumstances)

Remember: the policy guidelines and the law is always changing

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Human Rights (cont’d)

Bona Fide Occupational Requirement

Meiorin Decision

A firefighter in British Columbia failed a mandatory physical test

She claimed that the test created adverse discrimination based on her gender

A workplace requirement that amounts to discrimination is permissible where it is found to be a bonafide occupational requirement (“BFOR”)

The BFOR test as laid out by the Supreme Court of Canada:

1. Rationally connected to the performance of the job

2. Based on an honest and good faith belief that it is necessary to the fulfillment of the legitimate work-related purpose

3. That it is reasonably necessary to the accomplishment of that legitimate purpose – to show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees without imposing undue hardship upon the employer

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Human Rights (cont’d)

Case Study – ABC Co.

ABC Co. attended at a job fair

Spoke to a possible job candidate about a full time permanent job opportunity

The company had a practice of scoring candidates with either: A, B, C on the resume

This candidate scored an A

During a subsequent phone interview he was told that the call was regarding a temporary position – the recruiter asked him about his immigration status and his credit history

The company did not offer him employment

The candidate filed a discrimination claim with the OHRT

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Corporate Culture / “Fit” Assessment

The most difficult part of the recruitment process!

In law, employers must avoid making decisions based on subjective considerations such as whether the person exhibits “confidence” or is viewed as “suitable”

Employers who rely on these kinds of subjective assessments are vulnerable to claims of discrimination

Without objective criteria, an employer will have trouble explaining why some candidates were not qualified for the job if a human rights complaint is filed

“Free flow” interviews are the most vulnerable to human rights complaints

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Corporate Culture / “Fit” Assessment (cont’d)

The process should be the same for all applicants – and it should be documented

Engage in behavioural style interviewing

Maximize interactions

Multiple team members

Group interview

Meet and Greets

Informal interview – over coffee

Attend a meeting or event

Use your gut feel – be careful what you reduce to writing

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Corporate Culture / “Fit” Assessment (cont’d)

Case Study – Momentous Corp.

Ottawa based tech company with 120 employees

“We drink. We swear. We don’t fucking smoke.” – Value Statement

Smoking is not yet a prohibited ground of discrimination, but it may eventually be covered under “disability” – nicotine addiction

Two schools of thought:

1. Addiction to tobacco is not a disability

Ontario Supreme Court, 1998

Ontario prison inmate Peter McNeill fought for his right to smoke behind bars

The Court did not want to trivialize the definition of disability

Not a mental or physical disability

2. Addition to tobacco deemed a disability

Cominco Ltd, B.C. & Steelworkers – a mining and smelter operation

Banned smoking anywhere on its facility – vast property

No time to leave the property, smoke, and return to work

Arbitrator ruled that Cominco must accommodate

The future?

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Reference Checking

All forms of reference checking must / should be acknowledged by the candidate through written consent

Employment References

Educational History

Vulnerable Sector Checks

Driving Record Check

Financial/Credit Checks *

Criminal Background Checks (for which a pardon has not been granted)

Professional Accreditation Checks

Health Information

Note: Some exceptions exist in Alberta and British Columbia, but it is still a best practice

Growing body of privacy legislation should be taken into consideration

Human rights considerations still apply

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Reference Checking (cont’d)

Financial / Credit Checks

Credit background checks on candidates are permitted

However, proceed with caution. . .

Only acceptable for workers with financial responsibility or where a particular industry requires it (i.e. a casino)

Make sure that it is absolutely necessary before making it a part of your hiring process

Determine if there are other less intrusive means of gathering the necessary information

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Reference Checking (cont’d)

Case Study – Marks’ Work Warehouse, 2010

The store had experienced in-store theft and fraud

Previous attempts to deter this were unsuccessful

The Company began conducting credit checks on job applicants

One unsuccessful applicant filed a claim with the Office of the Information and Privacy Commissioner in Alberta

The investigator determined that private financial information does not reasonably evaluate an employee’s likelihood to commit theft or fraud

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Reference Checking (cont’d)

Obtain express written consent

Use a consistent form / questions

Limit the checks to what is actually necessary

Make conditional offers subject to termination if the results are not satisfactory

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Always Remember . . .

Administrative bodies protecting human rights and privacy interests are complaint driven systems

Risk management is the “key”

During the recruitment process, obtain necessary information in the least intrusive manner possible

Always be mindful of all prohibited grounds of discrimination

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Thank You.

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