Human Rights and the Hiring Process

By: David Spears

Employers are familiar with their duties and obligations under the Ontario Human Rights Code (the "Code") when it comes to managing their employees, or at least they should be. However, many employers are not aware that the Code places duties and obligations on them during the hiring process as well.

The Code provides that every person has a right to equal treatment with respect to employment without being discriminated against because of the person's race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.

This right to equal treatment with respect to employment refers to all aspects of employment, including the hiring process. In fact, the Code specifically prohibits discrimination in regards to employment advertising, employment application forms and any employment interviews. Employers who are not careful with respect to their hiring process may be liable for violations of the Code and, as a result, may be forced to pay compensation to a prospective employee for lost earnings or job opportunities and even damages for mental anguish that the prospective employee has suffered.

Set out below are some things to keep in mind when you are planning to hire a new employee.

Advertising

Recruitment is often the first step in the hiring process and advertising, whether in the newspaper, a trade journal or even on a billboard (recruitment method employers often use). A well designed advertisement can attract qualified candidates while, at the same time, discourage unqualified candidates. However, advertisements that attempt to screen or restrict candidates, or otherwise suggest a preference for a certain type of candidate, on a basis that is discriminatory are unlawful and can expose the employer to liability.

It is important when designing an advertisement to use language that is not discriminatory, but gender-neutral and inclusive. Below are some examples of discriminatory language:

an advertisement that states that the employer is looking for "young and ambitious" candidates rather than simply "ambitious"

an employer looking "for a qualified man" to fill the position rather than a "qualified candidate"

an advertisement for a "junior employee" rather than for someone to fill a "junior position"

an opening for a person whose "first language is English" rather than someone who is "English speaking"

searching for an "able-bodied worker"

Where the advert is placed is also an important consideration. It is better to place an advert in a place where a broad range of qualified candidates will have access to it rather than a place where only a limited segment of the population can see it. For example, posting an advert only in the men's washroom at a golf and country club may be seen as discriminatory.

Employment agencies are also bound by the Code and employers can not use agencies to filter out applicants based on a discriminatory ground.

Applications

Questions on an employment application form must not be designed in a way that would directly or indirectly elicit information about an applicant that relates to one of the grounds protected from discrimination. For example, questions in a job application that relate to a person's race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap can be seen as discriminatory.

Some examples of discriminatory questions on an employment application are:

questions about a person's race or colour

asking the person's age

questions about the applicant's place of birth or nationality

questions about a person's sexual orientation
asking an applicant whether they are married, divorced or single or have child-care responsibilities

asking whether the applicant has any disabilities or health problems

questions about a person's religious beliefs or whether they are willing to work on certain days of the week or over certain holidays can be problematic

asking whether the applicant has ever been charged or convicted of a criminal offence - although, interestingly enough, it is permissible to ask if he or she has ever been convicted of a criminal offence for which a pardon has not been granted

If it is necessary to use employment applications in the hiring process, it is prudent to have the application form reviewed by a lawyer to ensure that the questions on the form would not elicit information relating to one of the prohibited grounds.

Employment Interviews

Much like questions on an application, questions asked during an employment interview that are directly or indirectly discriminatory may expose employers to liability. It is, therefore, important for employers to give some thought before an interview to the questions that they are going to ask and, perhaps more importantly, the questions that they are not going to ask.

That being said, the Code permits employers to expand the scope of the questions beyond what is permissible in an employment application. An employer may ask a candidate questions in order to ensure that the candidate is able to do the essential duties of the job. For example, while it is not appropriate to advertise for "able-bodied workers" or to ask about an applicant's health on a job application form, it is appropriate at the interview stage to determine whether or not a candidate is able to perform the essential duties of the job. Where a person's disability may affect their ability to do the job, an employer may discuss in a job interview what, if any, accommodation is required to meet the person's needs and allow them to perform the essential duties of the job. An employer must always be prepared to accommodate a person with a disability provided it does not cause the employer undue hardship.

Whether conducting interviews, designing application forms or advertising for an opening, employers should be aware of their obligations with respect to the Code. After all, an employer is looking for the most qualified candidate, by unlawfully discriminating against a prospective employee an employer may not only be liable to that person for damages, and the employer may miss out on the best candidate for the job.

Human Resources
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