Avoid human rights landmines when recruiting

Employers need to be careful hiring decisions aren't based upon protected grounds — and should go to lengths to avoid any perception inappropriate factors were considered

Stuart Rudner

By Stuart Rudner

Recruiting new talent is a core function of HR, but it’s also one filled with risk. There are the usual dangers of hiring the wrong person or realizing the skill set you thought was appropriate does not actually match the position. In addition, the hiring process can be a human rights minefield.

While each piece of human rights legislation is somewhat different, an example of the protected grounds from the Ontario legislation is as follows:

•place of origin
•ethnic origin
•sexual orientation
•record of offences
•marital status
•same-sex partnership status
•family status

Employment decisions cannot be based on these factors unless they can be shown to be bona fide occupational requirements.

It should go without saying hiring decisions should not be made based upon protected grounds. However, employers must ensure there is not even a perception inappropriate factors were considered. For that reason, the individual responsible for selecting an applicant should only be provided with information clearly relevant to the decision-making process, and nothing else.

The advice above applies at every step of the hiring process. When preparing application forms, organizations should avoid requesting any information not relevant to the position. Fortunately, the trend of asking for photographs is largely behind us. However, I still see many application forms that ask for an individual's age, place of birth, gender, and similar information. Unless that is clearly related to the job requirements, and can be justified as such, then it’s extraneous information that can be dangerous.

If an applicant is forced to indicate on an application form they are, for example, 63, and they are subsequently not hired for entirely unrelated reasons, it’s not difficult to imagine they might feel as though their age was a factor. They could then bring human rights claim and allege they were discriminated against on the basis of age.

Practically speaking, it would then fall upon the employer to prove a negative: that age was not a factor, at all, in the decision. I say "at all" because the law is clear — if a prohibited ground is even a small part of the reason for the decision, then the human rights code has been breached. As a result, the best way an employer can protect itself is not to have this information.  By way of example, there is nothing wrong with asking an individual if they are legally entitled to work in Canada. However, there is no reason to ask where they were born.

Generally speaking, I advise clients to consider any question, whether it be on an application form or during an interview, and ask whether it relates to a reasonable and genuine requirement for employment. If it does not, there's probably no reason to ask it.

Using social media for screening

This brings me to a question I am often asked: Should employers use social media or other online tools in order to screen applicants? My response is that they definitely should. This includes LinkedIn, Facebook and anything else you can find and that may be relevant to the job in question. However, I usually add two caveats to this advice:

•information you find on sites such as Facebook should be taken with a grain of salt
•the information should be screened before it is supplied to the ultimate decision-maker.

With respect to the first point, employers should take one or two questionable photos in context and not immediately reject a candidate. That said, if there is a clear pattern of behaviour, it may well be relevant to the decision.

With respect to my second point, this gets back to the idea you do not want the person responsible for making the decision to have information that should not form part of the analysis. For that reason, someone else should review all sources of information, including online sources, filter out irrelevant information and provide what is left to the decision-maker.

A Facebook search might turn up photos of an applicant in a wheelchair, posing with their newborn child or celebrating an ethnic holiday. In order to avoid the situation where the individual is not hired and then makes the allegation they were passed over because you knew they were disabled, the parent of a newborn or of a certain ethnic background, you as the employer should ensure the decision-maker is not even aware of those facts.

At the end of the day, organizations should use all available sources of information when selecting job applicants. However, they should protect themselves by ensuring that they do not ask for inappropriate information, and that the ultimate decision-makers are not provided with such information, even inadvertently.

Stuart Rudner is a partner with Miller Thomson LLP in Ontario, specializing in employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (905) 415-6767 or [email protected]. You can also follow him on Twitter @CanadianHRLaw, join his Canadian Employment Law Group on LinkedIn, and connect with him on Google+.


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