Legal Barriers with Recruitment: So You Think You Know? Leeora Avrahami, E2R Solutions


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Legal Barriers with Recruitment: So You Think You Know? Leeora Avrahami, E2R Solutions

  1. 1. September 25, 2013 These copyrighted materials are the sole and exclusive property of Woolgar VanWiechen Ketcheson Ducoffe LLP (“WVKD”). These materials are for the sole use of the person or entity to whom they were delivered by WVKD. No part of these materials may be reproduced or disclosed to any person without the express written consent of WVKD. Legal Barriers to Recruitment
  2. 2. 2 Agenda  Human Rights  Corporate Culture / “Fit” Assessment  Reference Checking
  3. 3. 3 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
  4. 4. 4 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 . . .
  5. 5. 5 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
  6. 6. 6 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
  7. 7. 7 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
  8. 8. 8 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
  9. 9. 9 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
  10. 10. 10 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
  11. 11. 11 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?
  12. 12. 12 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
  13. 13. 13 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
  14. 14. 14 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
  15. 15. 15 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
  16. 16. 16 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
  17. 17. 17 Thank You. e2r Solutions® 70 The Esplanade, Suite 401 Toronto, ON Canada M5E 1R2 toll free. 1.866.327.7657 tel. 416.867.3093 fax. 416.867.1434 e2r Solutions® is a service of Woolgar VanWiechen Ketcheson Ducoffe LLP, a certified MDP. Copyright WVKD, LLP