Hiring without hassles: recruiting and retaining the best employees while avoiding legal pitfalls and human rights issues
Obligations and compliance for people who don’t even work for my company? Yup, that’s right. Not only do employers have to treat employees according to Employment Standards Act and other relevant legislations, but they also owe some similar considerations to the people who may want to work for them! For example, many employers are not aware that the Ontario Human Rights Code places duties and obligations on them during the hiring process.
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. The damage to the reputation of a company that is accused of discrimination (whether proved true or not) can be significant.
Set out below are some things to keep in mind when you are planning to hire a new employee.
Job posting requirements must be just that, job requirements. Make sure that your advertisement or posting does not discriminate on any of the prohibited grounds. Most people know that they can’t choose whether applicants are male or female. Some further examples not to include are phrases such as “young and dynamic,” “able bodied,” or “first language is English.” All of those phrases discriminate. Are employers required to post positions, internally or externally? This question will be determined by your own company policies and procedures, and possible union contract. Having clear policies and procedures regarding internal posting and external posting to ensure that your employees and external candidates perceive the process as fair is just as important as being fair.
Application forms must ensure that they do not directly request information on any of the prohibited grounds. Application forms should not ask about the applicant’s date of birth, marital status, parenting status, country of birth etc. Application forms should also be careful not to solicit such information indirectly. For example asking if the employee is able to work weekends or late into the evening may be discriminatory towards applicants under the prohibited ground of family status. If you do use employment applications as a significant part of your screening 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.
Interview questions are designed to help employers get to know candidates and how they will fit into your organization. Make sure to formulate your questions in ways that do not ask about prohibited grounds. For example, you may be considering an older employee. What you can’t ask is “When do you plan to retire?” Or you may be interviewing a younger female candidate. What you can’t ask is “Do you plan to have children?” Keep your questions focused on the job requirements. What you can ask is “What are your long-term career goals.” Deciding ahead of time what type of questions that you will NOT ask ensures safer navigation of an applicant’s human rights.
Confidentiality and record keeping regarding applicant’s resumes is also important under privacy legislation. Only persons directly involved in the recruitment and decision process should view the information. Hard and electronic copies of candidates’ resumes need to be kept secure or shredded. It is a good policy to keep a record of who the applicants were and the screening and interview process. If you can show that there are valid job requirement reasons that you selected your successful candidate this may protect you in case of a discrimination charge regarding prohibited grounds.
Employment testing on non-prohibited grounds is acceptable if it is linked to the job requirements.
Police checks/Medical screening are also permissible. Medical screening must be related to job requirements. It is advisable to do this type of testing post-employment offer, as a condition of employment.
Duty to accommodate must always be on the forefront of an employer’s mind. If a candidate does have a need for accommodation based on prohibited grounds, the employer must be willing to offer accommodation. 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.
As an employer you will discriminate everytime you select a candidate from an applicant pool. Successful discrimination based on job requirements will ensure that you choose the best candidate. Discrimination based on any of the prohibited grounds sets you up for potential legal action and negative public perception. Taking a little time to become familiar with the Ontario Human Rights Code and reviewing your application forms, interview questions and hiring processes will ensure that you can hire withouth hassles!
Marcia Scheffler, M.A., CHRP Candidate
Human Resources Generalist