Ontario human rights policy will mean more work for HR
The Ontario Human Rights Commission (OHRC) doesn’t think so — it introduced a policy stating the requirement is discriminatory and should not be used by employers and regulatory bodies, unless it’s a bona fide occupational requirement.
“There is no common understanding of the skills employers or regulatory bodies are trying to assess when they impose a requirement that applicants have Canadian experience. This can be extremely frustrating for newcomers who may be qualified for a position or professional accreditation but who have not yet worked in Canada, and are not given a chance to prove their qualifications,” said the OHRC.
Sometimes, it’s a shield for outright discrimination but often it’s a matter of people thinking that by requiring it, people will fit within the organization, said Barbara Hall, chief commissioner at the OHRC.
“Having Canadian experience is no guarantee of anything, really, but is definitely, when it’s strictly applied, an impassable barrier.”
Use of the phrase could be seen as direct discrimination if someone purposely doesn’t want to hire a certain group but a more likely reason concerns the notion of adverse impact, according to Raquel Chisholm, a senior associate at labour and employment law firm Emond Harnden in Ottawa: “If, for good faith reasons, somebody asks for Canadian experience because they think it’s important, it could adversely impact immigrants who simply don’t have that.”
People think of the term as a proxy at times, said Claude Balthazard, vice-president of regulatory affairs at the Human Resources Professionals Association (HRPA) in Toronto.
“‘Canadian experience’ is often seen as a way to make sure the experience is relevant, as opposed to digging a bit deeper and sort of asking what the person can actually do.”
On the surface, it’s a benign term, according to Izumi Sakamoto, associate professor at the Factor-Inwentash Faculty of Social Work at the University of Toronto. Canadians are friendly, polite people so instead of using something that sounds mean or discriminatory, they use “Canadian experience.”
“It’s a convenient term you don’t have to explain,” she said, but it’s also narrow-minded.
“By default, immigrants don’t have Canadian experience when they get here. So it sort of justifies, falsely, the lack of credentials or qualifications.”
Onus on employers
But with the new OHRC policy, the onus will be on employers and regulatory bodies to show the requirement is needed.
“They’ve declared ‘Canadian experience’ to be prima facie discrimination and, therefore… you can do it but you must demonstrate that it’s a BFOR (bona fide occupational requirement),” said Balthazard. “It’s shifted the onus of proof, if you wish, so… you can use ‘Canadian experience’ but, if you do, it’s deemed to be discriminatory, so therefore you’ve got to prove that it isn’t.”
And while “Canadian experience” can be used in limited circumstances, these are not named in the policy.
“We’re not sure what those are,” said Hall. “We’ve been trying to figure out what experience you could only get in Canada, and short of some sort of fictitious tree beetle only found in a particular area of the Canadian Shield… Once you start thinking about it, you realize how there aren’t examples, so we say, ‘You’d have to be able to show (us) because it’s possible there are some things we haven’t thought of.’”
Impact on HR
In creating job ads, the term should be treated as any other bona fide occupational requirement, said Chisholm.
“You would need to be really careful in putting in this ‘Canadian experience’ thing and go through the same analysis that you would for any of those other qualifications or requirements that may impact somebody on one of the grounds.”
So if an employer plans to use the term in a job ad, it should delve deep into what it means by that, why it’s being used and if there’s another way to reach people it may not be intending to limit, she said.
As a best practice, employers should separate job requirements that are legitimate from those that are nice-to-haves and only require a level of proficiency that is necessary to do the job, said the OHRC.
“What we’re saying is list the competencies that you require and then people can come and show how they meet those; and the experience could be anywhere if, in fact, they can do the task,” said Hall.
Hiring managers and HR professionals may also not want to take risks, “so when people ask for Canadian experience, that is really about risk-aversion,” said Sakamoto, who has also lead a university-community coalition called the Beyond Canadian Experience project.
Instead, they should spell out in very specific terms what’s in the job, “instead of hiding behind that blanket term ‘Canadian experience.’ So be very specific, be clear and distinguish nice-to-have kind of qualifications and absolutely must-have qualifications,” she said. “Senior management also has to have commitment to this issue as well, to not hide behind the familiarity, to step outside of that comfort zone.”
As people think more about the policy, they’ll see the positives, said Hall.
“There needs to be some thoughts around policies, procedures, training, all of those things but the benefits are great,” she said. “Employers will see that there’s a strong business case for this — it expands the pool of available people, it allows employers to have a workforce that matches the customer base.”
And going forward, the OHRC will be doing public education around the new policy while reviewing the situation, said Hall.
“We’ll be monitoring if people are coming forward to the tribunal, believing that they’ve been discriminated against because of this, and looking for... particular areas or sectors or whatever, looking for where it’s a systemic issue, either doing a public inquiry or we have the potential to intervene in individual applications or to initiate our own.”
