Although moderate growth is forecast for Canada in 2012, there is a general acknowledgement that Canadian businesses are increasingly guarded when it comes to hiring.1 Although getting hiring right is extremely important for small and medium-sized business, it is perhaps more of an issue given the current economic climate. As such, this article will consider applicable law as it relates to what is often the first stage of the hiring process: the creation and posting of the job advertisement. This article aims to assist readers in assessing whether their current hiring practices make for a "good fit" with Ontario law.
The Job Advertisement
An effective job advertisement will set out the nature and responsibilities of the position, along with the qualifications and basic requirements an applicant must possess. In preparing a job advertisement, employers are reminded that the presence of discriminatory job requirements (in the advertisement or description) may lead to a claim of discrimination against the employer.2 This is not a remote risk for employers, given that in Ontario some three-quarters of all human rights complaints come from the workplace.3 The Ontario Human Rights Commission recommends that requirements or duties for employment should be reasonable, genuine and directly related to the performance of the job.4 In setting out the job advertisement and/or job description, the employer should ensure that it is free from discriminatory job requirements. This means that the job advertisement must not contain statements, qualifications or references that relate either directly or indirectly to race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, gender, sexual orientation, record of offences, age, marital status, family status or disability.
This article will focus on four common requirements, namely (i) the requirement to have a valid driver’s licence, (ii) language and fluency requirements, (iii) Canadian experience requirements, and (iv) post-secondary education requirements.
With some 11.2 million vehicles registered in Ontario (1.3 million of which are commercial vehicles)5 it is clear that having access to (and the legal right to operate) a motor vehicle is an important part of the day-to-day operation of many small and medium-sized businesses. In formulating a job advertisement, the employer should determine which positions (if any) within its organization involve driving as an essential duty.6 For these positions, the job advertisement may state that a valid driver's licence is required. Thereafter, a question relating to whether the applicant is licensed to drive and the type of vehicle they are licensed to drive would be appropriate7 with actual verification (that the applicant is indeed licensed) being carried out after a conditional offer of employment has been made. Employers must be mindful of the fact that a driver's licence contains personal information about an applicant, such as their age, gender and possible disability (if applicable). Having access to personal information about an applicant may expose the employer to a claim of discrimination on the basis of a prohibited ground. As a result, an employer should carefully consider whether the driver's licence requirement is necessary for the position, and whether it should be listed in the job advertisement and/or job description.
Language and Fluency Requirements
Although Canada is linguistically diverse, language is not a prohibited ground of discrimination in the Ontario Human Rights Code. Language can, however, in the experience of the Human Rights Tribunal of Ontario, be an element of a complaint based on prohibited grounds such as ancestry, ethnic origin, place of origin and even race.8 Employers should therefore assess which positions within their organization (if any) require fluency in English, French or any other language. While it may well be reasonable, genuine and directly job-related to require a receptionist to speak clear, intelligible English, it would not be acceptable to require a receptionist to speak with unaccented English.
Employers are cautioned that including a requirement for Canadian experience in a job advertisement or job description may limit applications from recent immigrants. In addition to the consideration as to whether it makes commercial sense to unduly limit the size of the applicant pool, an employer may also expose itself to a claim of discrimination on the basis of race, ethnic or place of origin. Rather than insist on Canadian experience or a reference from a Canadian reference, employers should consider alternative means of assessing an applicant’s skills and abilities, including the use of standardized tests, letters of reference and probationary periods.9
Post-secondary education requirements
Most employers will have a sense as to the qualifications, designations and/or certifications that an applicant must possess for the performance of their tasks. For instance, to be employed in certain skilled trades in Ontario, a worker must have a provincial certificate of qualification. Therefore, if the position requires a particular level of certification or education, then that level of attainment should be clearly set out in the job advertisement and/or job description. However, in assessing a candidate’s post-secondary education, the employer must guard against discriminating on the basis of age. For example, a complaint based on age-related discrimination may arise if an employer was to ask a candidate about the date they were awarded their diploma or degree. Although carrying out education-related verification is sensible, it can be completed after the applicant has been given a conditional offer of employment.
Finally, employers should also be aware that they risk discriminating against applicants on a prohibited ground where the job's requirements are “inflated”. An example of such inflation may arise where the position requires a university degree when a high school diploma will do. It is therefore important that the requirements or duties for employment as set out in the job advertisement be reasonable, genuine and directly related to the performance of the job.
1http://www.chamber.ca/images/uploads/Reports/2011/EconomicOutlook111228.pdf at page 3.
3Guide to your rights and responsibilities under the Human Rights Code (January 15, 2009). Available online at: http://www.ohrc.on.ca/en/guide-your-rights-and-responsibilities-under-human-rights-code
4Guide to your rights and responsibilities under the Human Rights Code (January 15, 2009). Available online at: http://www.ohrc.on.ca/en/guide-your-rights-and-responsibilities-under-human-rights-code
5Ontario Ministry of Transportation quick facts. Available online at: http://www.mto.gov.on.ca/english/about/
6See the Ontario Human Rights Commission Policy on requiring a driver's license as a condition of employment. Available online at: http://www.ohrc.on.ca/en/policy-requiring-drivers-licence-condition-employment
7Ibid at page 5.
8Policy on discrimination and language, available online at: http://www.ohrc.on.ca/en/policy-discrimination-and-language
9Human Rights at Work 2008 – Third Edition. Available online at: http://www.ohrc.on.ca/en/human-rights-work-2008-third-edition?page=human-IV_.html