legal words
Employers must constantly consider
legal issues that arise with their
workforces. Often, employers focus
on legal issues with former employees,
such as when former employees bring
human rights applications or wrongful
dismissal claims, or when former employees
breach restrictive covenants. However,
many employment-related legal issues can
arise during the hiring process.
It is well known by Ontario HR professionals
and managers that the Ontario
Human Rights Code (the Code) protects
employees of provincially regulated
Ontario employers from harassment and
discrimination. This includes during the
hiring process.
Section 5(1) of the Code, which applies
both to current and potential employees,
protects against discrimination on the
basis of the following grounds: 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.
Employers may not directly or indirectly
classify or indicate qualifications by a
protected ground in a job posting or application.
For example, it would typically
violate the Code for an employer to include
in its job posting that it is looking only for
people under the age of 40. Similarly, an
employer may not ask questions of applicants
(including during an interview) that
directly or indirectly classify or indicate
qualifications by a protected ground.
There are exceptions to the rules
about discrimination in the hiring process
where the employer can show that
an otherwise discriminatory requirement
for employment is a bona fide occupational
requirement (BFOR). In order to
be a BFOR, an employer must satisfy a
three-part test: (a) there must be a rational
connection between the BFOR and
the performance of the job; (b) the BFOR
must have been established with an honest
and good faith belief that it is necessary
to fulfil a legitimate work-related purpose;
and (c) the BFOR must be reasonably necessary
to meet that purpose. For this third
part of the test, the employer must demonstrate
that it would be impossible to
accommodate the employee without imposing
undue hardship on the employer.
For the vast majority of employers and
positions, however, the exceptions to the
general rules regarding discrimination in
hiring do not apply, and employers must
Rawpixel.com/Shutterstock.com
Human Rights Code
Considerations in the
Hiring Process
JOB POSTINGS, APPLICATIONS AND INTERVIEWS CANNOT CLASSIFY
APPLICANTS BY A PROHIBITED GROUND OF DISCRIMINATION
By Todd Weisberg
HRPATODAY.CA ❚ SEPTEMBER 2016 ❚ 17