When does an individual become a job applicant?

In the United States, there is a good deal of governmental dust being kicked up over the definition of an applicant. Is there any current case law on this in Canada? Have there been any related court decisions handed down?

Tim Mitchell
Question: In the United States, there is a good deal of governmental dust being kicked up over the definition of an applicant. The Office of Federal Contract Compliance Programs (OFCCP) recently handed down a ruling on what constitutes a job applicant. There have been several other bits of documentation from the OFCCP related to this. Most of this has been driven by the prevalence of online hiring tools being used in the U.S.

The importance of this is that the point at which an individual becomes a job applicant is when organizations are held responsible for fair hiring practices.

Is there any current case law on this in Canada? Have there been any related court decisions handed down?

Answer: My understanding is that the ruling of the OFCCP has a limited application, even in the U.S. It applies to federal contractors and subcontractors who are subject to certain recordkeeping provisions aimed at preventing discrimination. The government contractors are required to collect and retain records about the gender, race and ethnicity of each “Internet applicant” for employment. The records are used by the OFCCP to evaluate whether federal contractors are recruiting a diverse pool of qualified applicants and hiring new employees on a non-discriminatory basis.

The record-keeping requirements are not new and the rule itself simply clarifies who is an “applicant” in the context of the Internet and related technologies.

The ruling defines four criteria which must be met for an individual to be considered an Internet applicant:

•the individual must submit an expression of interest in employment through the Internet;

•the contractor must consider the individual for employment in a particular position;

•the individual’s expression of interest must indicate that the individual possesses the basic qualifications for the position; and

•the individual must not at any point remove himself from further consideration or indicate he is no longer interested in the position.

This rule was necessitated by a shift in the way individuals applied for jobs, the consequences for employers of potentially receiving large numbers of resumés and the difficulty experienced by the OFCCP in getting the necessary data to effectively determine whether discrimination existed within a contractor’s selection process.

The Canadian government has also acted to regulate employment equity with the federal Employment Equity Act. The act itself applies to federally regulated private sector employers and Crown corporations. Certain provincially regulated employers who contract with the federal government are also subjection to regulation through the Federal Contractors Program.

The legislation requires employers bound by the act to maintain records, submit reports and submit to audits of their workforce by the Canadian Human Rights Commission or the Minister of Labour, depending upon which program is applicable. Canadian employers are required to analyze their workforce and are expected to lessen gaps in designated groups’ representation based on labour market availability in the recruitment area, as determined by census data. In relation to applicants, Guideline 4, “Collection of Workforce Information” in the Guidelines for the Employment Equity Act and Regulations states:

Applicant Data

Regarding new employees, it should be noted that the regulations require that a survey questionnaire be given to an employee “when the employee begins employment”. [Regs., s. 5(a)(i)] This means after they have been hired. Information obtained during the hiring process, therefore, is not sufficient to meet the legal requirements. Some employers include on their application forms a voluntary question about designated group status. However, in order to meet the requirements of the act and regulations, a survey form must be given to each new employee after they become an employee. Data obtained in this way will be more accurate, as a person who has already been hired may be less reluctant about making personal information known. As well, there is no incentive to falsely self-identify as a member of a designated group, hoping to receive some special consideration.

Employers are cautioned that if questions about designated group status are asked during the hiring process, it should be made clear that answers are voluntary.

Employers should also indicate clearly the reason for asking these questions, i.e. for the purpose of implementing employment equity.

As the present employment equity system focuses on employees rather than applicants, the issue of Internet applicants does not arise. Note, however, that the current employment equity programs are up for review this fall so it may yet become an issue in Canada.

Tim Mitchell is a partner with Laird Armstrong in Calgary who practices employment and labour law. He can be reached at t.mitchell@lairdarmstrong.com or (403) 233-0050.

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