The field of recruitment and selection requires a great deal of patience, attention to detail, and awareness, when it comes to finding and selecting the perfect candidate for the job. Whether you are fresh into your first recruitment role, or a seasoned recruitment professional, understanding the proper and legal way of onboarding employees can make a tremendous difference when it comes to the company’s liability for discrimination. This article outlines some human rights considerations when hiring employees in Ontario.
Human rights considerations when hiring employees in Ontario
Recruitment begins with the initial job posting, and completes once the candidate accepts their job offer. Both of these stages, and all of the stages in between, hold a risk of contravening Ontario’s Human Rights Code (“OHRC”) if each step is not carefully crafted to ensure the recruitment and selection process is not discriminatory.
Some employers assume their method of recruitment and/or selection is legal and conforms to the OHRC without any true analysis, however, even systemic and subtle instances of discrimination found in a recruitment process is enough to find the employer liable for damages. A candidate may be able to show discrimination where a job requirement or line of questioning results in unequal treatment based on of the OHRC’s protected grounds.
Ontario’s Human Rights Code outlines various grounds on which employers cannot discriminate in the employment context. While criteria are important for any recruitment process, the grounds outlined in the OHRC are considered discriminatory. In Ontario, these grounds include: 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 or disability.
How to conduct a lawful job interview
The job interview is often the stage of the recruitment process where discrimination can stem from. During an interview, if the recruiter is not careful to ask direct and focused questions, the candidate may inadvertently provide information which is based on a protected ground, and if the candidate is not selected, the ground could be interpreted as the reason for not selecting that candidate. Such a scenario can open an employer up to considerable liability for discrimination, and as such, HR professionals should be aware of the questions that cannot be asked in a job interview as well.
When crafting the job interview questions, employers and HR professionals should ensure that they are specifically tied to the actual job and the skills that are necessary to fulfill the position’s duties.
At times, there may be a particular requirement for the job which may contravene the OHRC, but where the contravention is acceptable. This is referred to as a bona fide occupational requirement (“BFOR”). A BFOR is generally defined as a rule, standard, or requirement that is essential to performing the duties of a particular position. For example, if the job entails lifting heavy items, there may be a requirement to have the ability to lift up to 50lbs of weight. While this may inadvertently discriminate against certain persons protected by the OHRC, this requirement is directly tied to the essential duties of the job and would likely be considered a BFOR.
Having an established list of questions in advance of the job interview allows the HR professional to maintain control of the interview and ensure that only questions pertaining directly to the job’s duties are being discussed. If a candidate begins to reveal information pertaining to one of the grounds, it is best to avoid this line of questioning and move on. If a candidate reveals a disability and requires any accommodation before or during the interview, the HR professional and employer must accommodate the candidate up to the point of undue hardship, and document any information provided to them regarding any protected ground.
When to seek assistance of a lawyer
Employers and HR professionals should seek the advice of an employment lawyer prior to commencing a recruitment campaign to ensure that the recruitment process is legal and limits the employer’s liability for discrimination. Getting a head start on ensuring that the process is free of discrimination and conforms to Ontario’s human rights legislation can save the employer of the headache, and costs, associated with a human rights claim.
Blogging for Achkar law is Christopher Achkar, founder and principal of Achkar Law. Since being called to the bar in 2016, Christopher works with employers regarding all their HR Law needs at multiple levels of court, including tribunals such as the Human Rights Tribunal of Ontario, the Canadian Human Rights Commission, the Ontario Labour Relations Board, and the Workplace Safety and Insurance Board.
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