Overqualified applicant? Screen at your own risk

Employers risk a discrimination complaint if they don’t take a better look at an overqualified job candidate

Screening out overqualified candidates is a fairly common practice among employers to save time in the recruiting process. However, the practice can lead to the threat of a discrimination complaint if the candidates are part of a group, such as immigrants, where excess qualifications can be a common characteristic.

In Sangha v. Mackenzie Valley Land and Water Board, the Canadian Human Rights Tribunal ruled when an employer establishes a rule against hiring overqualified candidates, there can be a discriminatory effect on overqualified immigrant candidates. This is because immigrants are more likely to be overqualified for the positions for which they are applying and are more likely to be screened out.

Gian Singh Sangha, a Sikh of East Indian origin, immigrated to Canada in 1996. He had obtained post-secondary degrees, including a PhD, in agriculture, environmental science and land planning from universities in India and Germany. He also had work experience in environmental sciences and as a professor. After arriving in Canada, Sangha was unable to find employment suited to his qualifications and background.

After many unsuccessful attempts to secure long-term employment in his field, Sangha applied for an entry-level position with the Mackenzie Valley Land and Water Board as a Regulatory Officer. The job posting required post-secondary education related to the environmental field, an understanding of environmental issues in Canada’s North and some northern experience. The position consisted mainly of processing land use permit requests and contacting interested parties.

Sangha was selected, along with 12 other candidates, to interview for the position. During the interview, a standard questionnaire was used and each candidate was given a score. Sangha had one of the highest scores but was not offered the job because the hiring committee felt he was overqualified for the position and would quickly become bored with the work. Sangha launched a complaint alleging the board had discriminated against him by refusing to hire him. He asked to be placed in the position when it next became vacant, compensation equalling three years’ salary and damages for pain and suffering. By refusing to consider Sangha because he was overqualified, the board discriminated against him based on his national or ethnic origin, the tribunal found. He was awarded $9,500 in damages for pain and suffering but the tribunal refused to compensate him for lost wages. It found he had not shown the likelihood he would have been hired for the position in any event.

The Federal Court of Canada agreed screening overqualified candidates can have a discriminatory impact on immigrants like Sangha. It further found the tribunal erred in concluding Sangha did not have a serious possibility of acquiring the position had he not been overqualified. The court set aside the tribunal’s decision on the amount of damages and remitted the issue for reconsideration. It is still unclear what damages could be awarded for lost wages in such a case.

Sangha highlights the link between visible immigrant status and overqualified status. The experience of applying for a job where one is overqualified is disproportionately an immigrant experience. As such, if an organization adopts a rule against hiring overqualified candidates, there can be a discriminatory effect upon overqualified immigrants.

Sangha also serves as a caution to employers and offers valuable lessons about such recruitment practices. Rejecting a candidate for being overqualified could be viewed as discriminatory, giving rise to liability under human rights laws. Employers must be sensitive when applying an automatic screening policy. When faced with an overqualified immigrant applicant, employers should inquire about the applicant’s motives for applying before deciding whether to screen him out of the hiring process. The use of a structured interview format, with a question and ranking system, increases the objectivity of the process and limits the risk of liability under human rights laws.

For more information see:

Sangha v. Mackenzie Valley Land & Water Board, 2006 CarswellNat 2219 (Can. Human Rights Trib.).
Sangha v. Mackenzie Valley Land & Water Board, 2007 CarswellNat 2710 (F.C.).

Daphne Fedoruk is an employment and labour lawyer at Ogilvy Renault LLP’s Ottawa office. She can be reached at (613) 780-1540 or dfedoruk@ogilvyrenault.com.

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