What can and can't be included in a job posting
Question: What kind of requirements can be included in a job description or job posting, and what requirements should be avoided in order to prevent discrimination claims? Does including a requirement in a posting or job description before anyone applies support an argument that it is a bona fide occupational requirement?
Answer: Subject to restrictions contained in a collective agreement, an employer has a right to determine the duties it needs its employees to perform and establish reasonable qualifications. In designing the qualifications for a position, however, an employer must be careful to ensure such qualifications do not directly or indirectly discriminate against an employee, or prospective employee, on a ground prohibited under human rights legislation.
A qualification in a job description or posting will discriminate directly if it excludes a person or group on the basis of a prohibited ground. An example would be a job posting for a resident care attendant which states the successful candidate must be female.
A qualification will be indirectly discriminatory if the requirement, while appearing neutral, has an adverse impact on a person or group on the basis of a prohibited ground. For example, a qualification that all pilots must be at least six feet tall would have the effect of discriminating on the basis of sex, as many men but few women would be able to satisfy this height requirement.
If a qualification directly or indirectly discriminates against an employee or potential employee on the basis of a prohibited ground, it does not necessarily mean the employer cannot include the qualification in the job posting or the job description. To successfully defend against a claim of discrimination, however, the employer must be able to establish the qualification is a bona fide occupational requirement. The employer must prove:
•It adopted the qualification for a purpose rationally connected to the performance of the job.
•The qualification was established in an honest and good faith belief it was necessary for the fulfillment of a legitimate work-related purpose.
•The qualification is reasonably necessary for the accomplishment of that purpose, in the sense the employer cannot accommodate a person who is unable to meet the qualification without incurring undue hardship: British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U.
In order to minimize potential liability, an employer should carefully analyse the qualifications in its job descriptions and job postings to identify requirements that may be discriminatory. If a discriminatory qualification is identified, the employer should consider whether it can reasonably adjust it, or otherwise make accommodations for a candidate who cannot meet it, without suffering undue hardship.
Evidence a discriminatory requirement was included in a job posting before any candidates applied for the job will not usually assist in defending against a human rights complaint.
For more information see:
•British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U., 1999 CarswellBC 1907 (S.C.C.).
