This section describes the human rights issues that commonly arise in interviews, some of the types of questions that may or may not be asked, and how to make hiring decisions that do not contravene the Code. Supervisors, managers and human resources staff who are responsible for making hiring decisions must be trained and educated to identify and eliminate discrimination, harassment and barriers to advancement for persons protected by the Code. Show
a) Employment agencies/search firmsAn employer cannot use an employment agency to hire people based on preferences related to race, sex, disability or other Code grounds. This is specifically prohibited in section 23(4) of the Code. Employment agencies cannot screen applicants based on discriminatory grounds, and are not allowed to keep a record of client "preferences" of this kind. When using an employment agency or search firm, employers should make sure that the agency or firm is aware that they are an equal opportunity employer and wish to see a broad range of candidates. b) The hiring process must be fairAn employer should aim for a fair process that focuses on each candidate’s ability to perform the essential job duties. A best practice is to have a multi-person panel conduct formal interviews. Ideally, the interview panel should reflect the diversity available in the organization. They should develop set questions in advance, and ask all applicants the same questions. The questions should be based on the job’s essential duties and bona fide requirements. Before interviews start, create an answer guide showing the desired answers and a marking scheme. Then, each member of the interview panel can record and score each candidate’s answers against this guide. This kind of approach will help employers 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 or were not qualified for the job if a human rights complaint is filed.
Similar considerations apply to written tests that applicants are asked to complete during a hiring process. The tests given to all applicants should be identical and scoring should be done based on an objective marking scheme determined before answers are graded. Any written test should also be based on the job’s essential duties and bona fide requirements. For both interviews and written tests, the process should be the same for all candidates and determined in advance, subject to accommodation needs. For example, a hiring panel may decide that all candidates can be prompted if their answers in an interview do not correspond to the question asked. Or, in a written test, the employer may indicate that answers will be assessed based only on the information the candidates provide. If so, the candidates should be told to make sure that they address all parts of each question. Employers cannot ask some candidates questions they do not ask other candidates.
How far an applicant goes in a hiring process should not depend on informal assessments by individual interviewers. Staffing decisions based on informal processes are much more likely to lead to subconsciously biased decision-making. For example, conducting an interview by chatting with the applicant to see if he or she shares similar interests and will “fit” into the organizational culture may present a barrier for persons who are or appear to be different than the dominant norm in the workplace. If this is used as a starting point for deciding whether candidates will be seen by senior decision-makers, this creates a major barrier to persons protected by the Code.
Deviating from the usual hiring process can indicate discrimination even if a person excluded because of a Code ground would not have been the successful applicant in the absence of discrimination.
c) Offer and provide accommodation for the interview or testEmployers must accommodate applicants’ needs related to Code grounds for any part of the interview or hiring process, including tests. The employer must provide appropriate accommodation subject to the test of undue hardship. See also Section IV-8 – “Meeting the accommodation needs of employees on the job” for more information on the principles involved. The Commission recommends that employers offer accommodation to all candidates who need it when inviting them for an interview or test. A person who needs accommodation to take part in an interview is responsible for advising of this need in enough detail, and co-operating in consultations to enable the employer to respond to the request before the interview or testing. There is no set formula for accommodation. Each person's needs are unique and must be considered individually.
d) Make sure interview questions comply with the CodeWhen inappropriate questions relating to Code grounds are asked in an interview, an inference may be made that a decision not to hire was influenced by such questions. Employers could face a finding of discrimination even if there is no intention to discriminate. The fact that improper questions have been asked is sufficient to prove discrimination, even if the applicant is ultimately given the job.
Take care to make sure that interviews are only to get information about qualifications and job requirements needed for the hiring decision. Section 23(2) prohibits employers from asking questions that directly or indirectly classify or indicate qualifications by a prohibited ground of discrimination. On the other hand, section 23(3) permits asking questions at a personal interview about a prohibited ground of discrimination when discrimination on such ground is permitted under the Code. This means that at the interview stage, the employer has more flexibility to ask questions about prohibited areas of discrimination, provided that the questions relate to exceptions and defences that are provided for in the Code. These exceptions relate to special service organizations, special programs and jobs whose requirements are linked to specific Code grounds. i) Hiring based on Code grounds for a special program:When an employer meets the requirements of a special program, they will be able to target and hire persons based on specific Code grounds. For more information on special programs, see Section IV-1c) – “Plan and implement a special program.” At the interview stage, an employer can ask questions related to Code grounds to assess the applicant’s eligibility for a special program under section 14 of the Code. If a special program exists, it would be appropriate to ask relevant questions on a job application or in an interview to determine the candidate’s eligibility for participation in the special program. For example, an employer can ask questions relating to membership in a group experiencing hardship or disadvantage to determine if the person meets the provisions of a special program. Make sure to provide the person with information about the special program when asking these kinds of questions. ii) Hiring based on Code grounds if a special employment exemption applies:When an exemption under section 24 applies, an employer can hire persons based on specific Code grounds, as long as the requirement is reasonable and bona fide based on the nature of the job. In such situations, it would be appropriate to ask relevant questions on a job application or in an interview.
The employer is allowed to ask questions relating to Code grounds in an interview, and to rely on them in making hiring decisions, if it meets the criteria for one of the following exemptions: Special interest organization: Subsection 24(1)(a) allows certain special interest organizations to prefer hiring people based on their membership in certain groups. Special interest organizations might include:
For an organization to qualify for the exemption, it must also meet the following conditions:
If these conditions are met, it may be permissible to hire someone who is identified or preferred based on a ground in the Code.
Reasonable and bona fide link to Code grounds such as age or sex: Subsection 24(1)(b) allows discrimination in employment when the grounds of age, sex, record of offences or marital status are reasonable and bona fide qualifications because of the nature of the job.
Individual hiring for self, spouse or child who is “ill, aged or infirm”: Subsection 24(1)(c) allows an individual to discriminate based on all prohibited grounds listed in section 5, if the primary duty of the job is to attend to the medical or personal needs of the person, of an ill child or an aged, infirm or ill spouse or other relative.
Nepotism or anti-nepotism policies: Subsection 24(1)(d) allows an employer to grant or withhold employment or advancement to a person who is the spouse, child or parent of the employer or an employee. iii) Asking about the applicant’s ability to do essential duties of a job:In an interview, the employer can expand the scope of job-related questions to determine the applicant's qualifications or ability to perform the essential job duties. If, during an interview, the applicant asks for on-the-job accommodation for needs such as those relating to religion or pregnancy, these kinds of needs may be discussed at the interview stage. If the person identifies disability-related needs as an issue in an interview, disability and accommodation measures related to the essential job duties can be discussed. Other than at an applicant’s request, only discuss on-the-job accommodation after making a conditional offer of employment. e) Making non-discriminatory hiring decisionsThe decision-making process should be uniform, consistent, transparent, fair, unbiased, comprehensive and objective. Answers provided in an interview or written test should be scored against pre-set criteria that are based on the essential job requirements. Once a hiring decision is made, an organization should be able to document non-discriminatory reasons for hiring or not hiring each candidate. Written records from the interview and the entire job competition should be kept for at least six months if no complaint about the process is made, and longer if a human rights claim is made (until the claim is resolved in the courts or before the Human Rights Tribunal). Unless there is a specific reason to destroy competition records, it is in an employer’s interests to retain these documents as it will be better able to respond if a human rights claim is filed. Employees often choose not to “rock the boat” by filing a human rights complaint challenging hiring processes until after they have found another job or the final incident of discrimination, such as being fired.
Employers must make sure that only information about qualifications and job requirements is considered when making hiring decisions. If an applicant has volunteered information relating to Code grounds during the hiring process, decision-makers should not consider this information. In these cases, employers should be very careful about assessing the candidates based on legitimate factors. The only time an employer can consider information related to Code grounds is when one of the Code exceptions applies. When deciding whether to offer someone a job, employers should not take into account the fact that a candidate will not be able to start work on an anticipated start date due to a maternity, parental or disability leave. If the most qualified candidate is not immediately available, make alternate arrangements to fill the position in the interim. As with other forms of accommodation, this would be subject to the undue hardship standard.
A decision-making process must not have the effect of excluding any group identified by Code grounds, whether overtly or covertly.
While required qualifications may legitimately change from time to time, take care to make sure that any changes to the decision-making criteria will not have discriminatory impacts on applicants.
An organization should be able to provide a non-discriminatory reason for not hiring a person. Employers should avoid telling an untruth to spare an applicant’s feelings, as this may lead him or her to suspect that discrimination is in fact behind the decision not to hire. Even if a complainant is not the most qualified, discrimination may be found when he or she is given a discriminatory reason for the employer’s decision.
i) Discrimination in the hiring process:In general, discrimination in hiring may be identified when a qualified person is turned down for a job that is then given to another person who is not similarly protected under the Code. However, discrimination in the hiring process may also be established even if a particular person protected by the Code would not have been the successful candidate without the discrimination. For example, if two candidates are equally qualified and the non-racialized person is selected, the organization will need to provide a non-discriminatory explanation for not hiring the racialized person if a human rights claim is filed. As well, discrimination may be found when a qualified candidate is protected under the Code. Bias or stereotypes in the decision-making process may lead to eliminating candidates on the basis of grounds protected under the Code. The following list provides a few examples of hiring decisions that may be tainted by discriminatory considerations:
Employers should make sure that persons assessing or rating candidates are trained to identify and correct for bias based on age, social class, life experience and other personal factors that may affect how they view, and ultimately score, candidates.
Employers should also make sure to review and assess the qualifications of all candidates equally. When a decision-making process is cut short, take care to make sure this is not linked to Code grounds, and it will not have a more severe impact on persons protected under the Code.
f) Specific concerns based on individual Code groundsi) Age:Under subsection 24(1)(a) of the Code, questions about age are allowed if the employer is a special service organization that serves a particular age group. Special service organizations are defined as religious, philanthropic, educational, fraternal or social in nature, serving mostly the interests of certain age groups. Employers can hire persons based on their age if age is a reasonable and bona fide job requirement.
Even if an employer is not considered to be a "special service organization," it can still make distinctions based on age if age is a reasonable and bona fide qualification because of the nature of the job. If so, then the exemption under subsection 24(1)(b) of the Code may apply. No other questions or statements related to age are allowed. Comments on the applicant’s appearance and/or health or suggesting that the person may not fit into a youthful work culture may indicate discrimination on the basis of age and should always be avoided. The following types of statements can be reasonably be interpreted as euphemisms for age, or indirect ways of making inappropriate age-related comments:
ii) Citizenship:Employers can ask if a person is legally entitled to work in Canada. Avoid asking for information on nationality, place of birth or ethnic origin, even if these are required by the organization responsible for licensing the applicant’s occupation. Other than three specific situations described below, employers cannot ask for information about citizenship.
iii) Race and race-related grounds:Questions about "Canadian experience" sometimes pose particular problems for recent immigrants, and may have an adverse impact on persons based on their place of origin, ethnic origin or race. Employers should ask questions to assess whether candidates have trade or professional qualifications without asking about Canadian experience or stating that Canadian experience is preferred. In an interview, employers should avoid asking questions or otherwise commenting on the applicant’s:
Special service organizations that are religious, philanthropic, educational, fraternal or social may employ only people from certain racialized groups, if the organization serves mostly their interests. In these cases, employers can hire persons based on race, place of origin, ethnic origin. This exception does not, however, extend to citizenship and is only permitted if membership in the protected group is reasonable and bona fide because of the nature of the job.
In an interview, questions may be asked about language abilities, even if those requirements might be indirectly linked to a person's racial background, as long as the language abilities relate to a bona fide job requirement.
One of the most common forms of discrimination that racialized candidates are exposed to in an interview situation is being asked “Where are you from?” or “What nationality is your name?” These questions single out the candidate based on race, place of origin or ethnic origin and would not likely be asked of a Caucasian candidate. They are therefore discriminatory. While an interviewer might intend no harm, or even be seeking to put a candidate at ease, these questions should always be avoided. Racialized applicants and tribunals routinely find these types of questions to be discriminatory. Where having knowledge of a particular country or language is a bona fide occupational qualification, the questions asked should clearly relate to the qualification.
iv) Creed/religion:In an interview, if an applicant requests accommodation for religious requirements in the workplace, the accommodation needs may be discussed. Otherwise, employers should discuss accommodation of religious needs in the workplace after making a conditional offer of employment.
Special service organizations that are religious, philanthropic, educational, fraternal or social may prefer to employ persons of a particular religion if the organization serves mostly the interests of that group. If the exemption in subsection 24(1)(a) applies, the organization would be permitted to ask questions about an applicant’s creed or religion. Note that under section 19 of the Code, the constitutional rights and protections given to Roman Catholic schools are not affected by the Code. v) Disability:When an applicant’s disability becomes an issue during an interview, an employer is expected to canvas the need for accommodation measures. If this is not done and the applicant is not successful, this could lead to a complaint on the ground of disability. If a person chooses to talk about his/her disability at an interview, an employer can ask about their accommodation needs and ability to perform the essential duties of the job with accommodation. Any questions beyond this scope should be made with great caution and vigilance as they may lead to a complaint on the ground of disability if the person is not hired. Avoid asking gratuitous questions such as “How did you end up in a wheelchair?” or “Have you been blind all your life?” Questions about disability may be allowed by religious, philanthropic, educational, fraternal or social organizations that serve persons with disabilities. The exception in subsection 24(1)(a) of the Code applies provided that that having a particular disability is a reasonable and bona fide requirement because of the nature of the job. Requests for a driver's licence number or a copy of the licence, when relevant to the job, should only be made following a conditional offer of employment. Other disability-related issues should not be raised until after a conditional offer of employment has been made. All other questions about an applicant’s disability are prohibited. vi) Family status:Where employees have significant caregiving responsibilities, their ability to travel regularly may be limited. Avoid assuming that an employee or applicant with children will not be interested in work that involves travel. If travel is not a bona fide requirement, employees should not be denied opportunities because their caregiving responsibilities prevent them from traveling regularly or extensively. If travel is a bona fide requirement, and an applicant has said that he or she cannot travel often because of family status, this person should not automatically be screened out. If the person is otherwise qualified and suitable for the job, the employer may be expected to offer the person the job and provide accommodation to the point of undue hardship (for example, by recognizing related dependent-care expenses or providing appropriate supports). An employer may grant or withhold employment or promotions from a person who is a child or parent of the employer or an employee. When an employer has a policy on this issue, inquiries about whether an applicant is a child or parent of a current employee would be allowed. However, such a policy must be applied consistently and without regard to the personal characteristics of the person being interviewed. vii) Marital status:Questions based on marital status may be asked if the organization serves a particular group of persons identified by their marital status. Questions about marital status are allowed if the employer is a religious, philanthropic, educational, fraternal or social organization that serves a particular group of persons such as single, divorced or other persons identified by their marital status. The Code permits giving preference to persons based on their marital status, as long as marital status is a reasonable and bona fide requirement because of the nature of the job. For other employers, marital status may also be a reasonable and bona fide requirement for a particular job. In these cases, questions about the particular qualification can be asked at the employment interview stage. No other questions about marital status are allowed. An employer may grant or withhold employment or promotions to a person who is a spouse of the employer or an employee. When an employer has a policy on this issue, questions about whether an applicant is a spouse of a current employee or the employer would be allowed. However, such a policy must be applied consistently and without regard to the personal characteristics of the person being interviewed.
No other questions about marital status are allowed. viii) Record of offences:Employers are allowed to ask about and consider unpardoned Criminal Code convictions when hiring. It is discriminatory to consider information about pardoned Criminal Code convictions and provincial offences unless an exemption applies. Where an employer can show that the requirement is reasonable and bona fide because of the nature of the job, the exemption in subsection 24(1)(b) applies, and an employer can choose not to hire based on record of offences.
Questions to determine if an applicant is bondable are also allowed, if being bondable is a reasonable and bona fide requirement given the nature of the job. All other questions are prohibited. ix) Sex (and pregnancy):In some cases, because of the nature of the job, being a man or a woman may be a reasonable and bona fide qualification. In interviews, an employer can discuss this with the applicant. To hire based on sex, employers must be able to show that such a requirement is reasonable and bona fide, and that accommodation would cause undue hardship.
Organizations that are religious, philanthropic, educational, fraternal or social are allowed to prefer to employ only men or only women, if the organization serves mostly their interests and being a man or a woman is reasonable and bona fide based on the nature of the job. The right to equal treatment in employment because of sex prohibits pregnancy-related questions during a job interview. For example, an employer cannot ask an applicant whether she is pregnant or whether she has or plans to have a family, unless it relates to a reasonable and bona fide job requirement. If the applicant raises the issue of accommodation for pregnancy-related needs, the accommodation needs may be discussed at the interview stage. At the interview stage, the employer may expand the scope of job-related questions, if needed, to learn the applicant's qualifications or ability to perform the essential duties with accommodation. However, it may suffice for an employer to indicate that the accommodation process will be discussed following a conditional offer of employment. Employers can refuse to hire someone based on pregnancy if they can show that this is reasonable, done in good faith and based on the nature of the job. However, to benefit from this exception, employers must show that the essential qualifications or requirements of the job cannot be changed or accommodated without creating undue hardship, considering excessive costs or health and/or safety risks. See also Section IV-2a) – Make sure that job requirements are reasonable and made in good faith.” x) Sexual orientation:Questions about sexual orientation are not allowed during an interview, even if the employer is a religious, philanthropic, educational, fraternal or social organization. This is because the ground of sexual orientation is not listed in subsection 24(1)(a). Questions relating to sexual orientation may be asked to determine eligibility for a special program. Otherwise, no questions about sexual orientation are permitted. Which legislation has the most profound impact on Canadian recruitment and selection?The most important piece of employment legislation to bear in mind is the Equality Act 2010. The Act prevents employers from discriminating against employees and job applicants on the basis of protected characteristics.
What are the legal considerations for recruitment and selection?'Protected Characteristics' age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation.
Which 3 pieces of legislation are relevant to recruitment and selection of employees?The Public Service Act, 1994 (Act 103 of 1994). The Employment Equity Act 55 of 1998. The Labour Relations Act 66 of 1995.
What are the three main sources of employment law in Canada?Canada: Labour and Employment. Employment law is governed by three main sources of law: (1) the common law; (2) contracts and (3) by statute. Many of the rules regulating Canadian workplaces are contained in the employment standards statutes.
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