Avoiding Hiring Pitfalls
To avoid hiring pitfalls, employers should be aware of applicable human rights legislation. An employer that is federally regulated is subject to the Canada Human Rights Act, whereas provincially regulated employers fall under the jurisdiction of the Ontario Human Rights Code (“Code”).
This article will focus on discrimination in the hiring process under the Ontario Human Rights Code.
The purpose of human rights legislation in Ontario is “… to recognize the inherent dignity and worth of every person and to provide for equal rights and opportunities without discrimination.” To this end, employers are prohibited from basing hiring decisions on protected grounds: age, creed, disability, family and marital status, gender identity and gender expression, race and related grounds, receipt of public assistance, record of offences, sex and sexual orientation.
An employer should conduct the competition and hiring process in a manner that is fair, unbiased, transparent, comprehensive and objective. The goal is to employ a process that is free from discrimination, and that aligns with the purpose of human rights legislation.
The following is a non-exhaustive list of issues that may arise and should be considered in the recruitment process:
- An employer should offer accommodation to all job candidates at the interview and testing stage, bearing in mind that disabilities may be both visible and invisible. A prospective employee should not be penalized or disqualified as a result of an accommodation request.
- Employers should avoid verbiage such as “Canadian experience” as this language tends to exclude new immigrants, and adversely affects individuals based on their place of origin, ethnic origin or race.
- Questions about an applicant’s nationality, place of birth or ethnicity, are not permitted. However, an employer may ask whether an applicant is legally entitled to work in Canada.
- Refusing to hire a candidate based on lack of “fit” or due to a mismatch with “company image” can be problematic as this may have the effect of excluding older individuals, persons with disabilities and visible minorities.
- To avoid discriminating against individuals who have spent time away from the workforce to raise children, employers should carefully consider the reason for any gaps in a job applicant’s work history.
- A refusal by a job applicant to answer a discriminatory question, for example, whether or not he or she is married or intends to have children, should not be taken into consideration in a hiring decision. To do so would constitute an act of reprisal under the
- An employer is prohibited from considering criminal convictions for which an applicant has been pardoned, or convictions received under any provincial enactment, such as the Highway Traffic Act.
- An employer should maintain written records of the job competition and interview process to be used in the event of a human rights claim or court case.
The foregoing list is subject to a number of exceptions, such as those found at section 24(1) of the Code, which permit an employer to consider otherwise discriminatory factors, namely, where it is reasonable and bona fide to do so because of the nature of the employment. For example, it would be appropriate for an employer to refuse to hire an individual who has been convicted of child sexual abuse for a position that requires an employee to be alone with children. Similarly, an employer may refuse to hire a school bus driver who has been convicted of serious highway traffic violations.
An employer is held to a high standard, and rightfully so. There may be a number of plausible and non-discriminatory reasons at play in deciding against a particular candidate in a given situation, such as lack of the requisite skill level. However, discrimination occurs where at least one of the reasons for refusing to hire a candidate is based on a prohibited ground.
Employers should carefully vet interview questions to ensure compliance with the Code. Nonetheless, interviews are sometimes fluid and take unexpected turns. For instance, employers should be aware that an innocent series of questions related to a candidate’s hobbies or interests may require the candidate to reveal information about his or her family status or creed. This is especially important to consider given that it is no defence to an allegation of discrimination that there was no ill intent on the employer’s part. The lack of a requirement of intent is partially due to the Tribunal’s recognition that discrimination, namely racial stereotyping, “… will usually be the result of subtle unconscious beliefs, biases and prejudices.”
In the final analysis, hiring decisions should be based solely on qualifications and job requirements, without contravening the Code in regard to prohibited grounds of discrimination.
 Exceptions allowing inquiries about a job candidate’s citizenship status can be found at section 16 of the Code.
 Chaudhry v Choice Taxi of Cornwall Inc., 2012 HRTO 391 at para 126.
Author - Extraordinary Damages in Canadian Employment Law