HR people discriminate all the time, and they wouldn't be doing their jobs if they didn't
By Stuart Rudner
At the HR Law for HR Professionals course I was co-director of recently, one of our instructions commented that people tend to recoil in horror when they are referred to as being discriminatory.
In recent times, we have come to equate "discrimination" with unfair and unlawful conduct relating to factors such as the colour of a person's skin, their religion or gender. However, in HR, people discriminate all the time, and they would not be doing their jobs if they didn't.
The Merriam-Webster online dictionary contains the following entry for the term "discriminate"
Definition of discriminate
a : to mark or perceive the distinguishing or peculiar features ofb : distinguish, differentiate <discriminate hundreds of colors>
: to distinguish by discerning or exposing differences;especially : to distinguish from another like object
a : to make a distinction <discriminate among historical sources>b : to use good judgment
: to make a difference in treatment or favor on a basis other than individual merit <discriminate in favor of your friends><discriminate against a certain nationality>
Examples of discriminate
- The school is not allowed to discriminate.
- <the human eye can discriminate between very slight gradations of color>
As you can see, while some aspects of the entry relate to what would be perceived as unfair treatment, most are positive, such as using good judgment. When hiring, employers should discriminate.
Law firms seeking junior lawyers will discriminate against those without a law degree, and organizations seeking secretarial support will discriminate against those that cannot type well. Discriminating in this manner should result in good choices and, effectively, a job well done. It is nothing to be embarrassed about.
When we hear about "discriminatory practices," this tends to refer to discrimination based upon grounds that we, as a society, deem to be inappropriate. Most of these are enshrined in human rights legislation, making it unlawful to discriminate based upon grounds such as ethnic origin, religion, gender or disability.
As I often tell employers, they can and should discriminate based upon factors relevant to the position in question. Taking it one step further, while explaining that discriminating is not inherently wrong or unlawful, I have been known to say that "you can discriminate based on the colour of an applicant's shirt, but not the colour of their skin."
Doing so would not be unlawful, but would also not be an advisable HR practice.
To be unlawful, the basis for discrimination must relate to a ground protected by human rights legislation. It is obvious that posting a job for "men only" or saying "no Asians should apply" would be unlawful. That is direct discrimination.
Indirect discrimination exists when an employer imposes a requirement or policy that applies to everyone but particularly disadvantages a particular protected group. For example, a minimum height requirement might indirectly exclude women, who tend to be shorter than men.
Just last week, the Ontario Human Rights Commission issued a press release announcing the launch of its new policy on removing the "Canadian experience" barrier. Canadian HR Reporter’s managing editor, Todd Humber, posted a commentary this on his blog.
There is a legitimate concern that, in some cases, employers are using "Canadian experience" as a proxy for place of origin, ethnic origin, race and similar protected grounds, effectively doing indirectly what they cannot do directly. As a result, the province’s Human Rights Commission has issued its new policy to help remove some barriers encountered by recent arrivals to Canada.
Of course, if a job requirement can be shown to be bona fide, then it will not be a breach of human rights legislation even if it discriminates based upon a protected ground. As Humber summarized in his post, the Supreme Court of Canada’s ruling in the Meiorin case sets out the requirements for demonstrating that something is a bona fide occupational requirement; it must be:
•adopted for a purpose or goal that is rationally connected to the function being performed
•adopted in good faith, in the belief that it is needed to fulfill the purpose or goal
•reasonably necessary to accomplish its purpose or goal, because it is impossible to accommodate the candidate without undue hardship.
Of course, many forms of unlawful discrimination can be hard to prove, as most employers are savvy enough not to overtly discriminate. Rather than saying they require Canadian experience, they may simply toss out any applications that are lacking in that area.
Our human rights system is largely complaint-based, so unless a rejected applicant suspects that something is amiss and files an application, it is quite possible there will be no repercussions.
That said, when an application is filed, the standard of proof required is a balance of probabilities — in other words, an applicant only has to prove that it is more likely than not that the decision in question was based on a protected ground. They do not have to prove this "beyond a reasonable doubt."
As a result, employers facing allegations of unlawful discrimination effectively have to prove a negative — that they did not discriminate based on a protected ground. For that reason, I always advise employers to clearly document the reasons for all hiring decisions.
At the end of the day, being a discriminating employer is not necessarily a bad thing. However, employers cannot discriminate based upon grounds protected by human rights legislation, and using a factor like “Canadian experience” as a proxy for those protected grounds is equally unlawful.
Stuart Rudner is an HR lawyer and a founding partner of Rudner MacDonald LLP, a Toronto-based firm specializing in Canadian 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 [email protected]. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.