Is geographic area a protected ground?
Question: Can a company limit candidates for a position to a specific geographic area, or is that a form of discrimination?
Answer: Generally speaking, employers can establish any criteria they choose when hiring. Of course, criteria or decisions that relate even partially to a ground protected by human rights legislation will contravene that legislation. Limiting candidates based upon geography would not, in and of itself, be a breach of human rights or in any way be against the law.
However, geography can indirectly relate to prohibited grounds. For example, certain neighbourhoods will have — or not have — certain ethnic or religious groups living in them. As a result, discriminating based on such neighbourhoods could constitute indirect discrimination, which is equally unlawful. Employers cannot do indirectly what they are prohibited from doing directly. For example, we all understand that a policy of not hiring those of Italian descent would be unlawful. However, employers cannot “get away with it” by establishing criteria that would implicitly rule out Italian candidates.
Of course, any criteria or decision regarding the desired characteristics for a job can be justified where there is a bona fide occupational requirement. If the geographic location can be demonstrated to be such a requirement, then even if there was indirect discrimination, it would not be a breach of human rights legislation.
Stuart Rudner is a founding partner of Rudner MacDonald LLP, a Toronto-based employment law firm. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell, a Thomson Reuters business (see www.carswell.com for more information or to order your copy). He can be reached at [email protected]
