Discriminating between job candidates is fine – as long as it doesn't violate human rights
Going through countless applications and resumés. Narrowing down candidates. Scheduling and carrying out interviews. Weighing the strengths and weaknesses of top contenders. Making an offer and planning onboarding. The paperwork!
The process of hiring a new employee is not an easy or quick one. A lot can be riding on a hiring decision – team dynamics, productivity, workplace culture – so it’s an important decision. Hiring managers and HR people have to take many factors into account. And they have to make sure the decision is for legitimate business reasons, not anything related to protected human rights grounds.
That’s not to say employers can’t discriminate between different job candidates. Obviously, a hiring manager is looking for someone to fill a specific position with specific requirements, so sorting out candidates based on those requirements is a form of discrimination. But any kind of human rights-protected characteristic is legally prohibited.
For example, disability is a characteristic that is protected under human rights legislation, but it is one for which employers could be tempted to discriminate against. This issue recently received some visibility when the Saskatchewan government pledged more than $10 million to programming and services that help with the employability of disabled people. Programs like this can help people find work, but employers are the ones doing the hiring, and they can’t let perceptions based on such characteristics colour their hiring decisions.
Read more: Off-limit questions when hiring
Inappropriate questions
Employers can get into trouble if they even ask about protected characteristics on applications or in job interviews. Questions about things like age, religion, or whether someone plans to have children may seem somewhat innocuous, but they can potentially affect the perception of a job candidate and make them feel uncomfortable. And for most jobs, they’re not important.
Just over a decade ago, a national study by an immigration research centre found that resumés with common Anglophone names were much more likely to receive a callback than those with Indian or Chinese names, regardless of education or qualifications. Even if such weeding out isn’t intentional, there’s a potential for unconscious bias of which employers should be aware.
Even where an employer may think it has a right to discriminate because of the nature of its business, it may not be able to. A Christian religious organization that operated residential care homes in Ontario upheld certain values which it enshrined in lifestyles standards for its employees. It believed that as a religious organization, it had a right to restrict its employment to those who followed its values – something that the Ontario Human Rights Code permitted. However, when it fired a worker for not following the lifestyle standards, the Ontario Human Rights Tribunal found that it wasn’t exempt from the code’s discrimination prohibition because it didn’t hold its clients to the same standards. In addition, the lifestyle standards weren’t necessary for the performance of the job, which was to provide care and support for people with developmental disabilities, said the tribunal in awarding $23,000 in damages.
Read more: 9 ways to avoid discrimination in recruitment
Job requirements
However, it is possible to discriminate against job candidates based on certain human rights grounds if it’s rationally connected to the job requirements. A couple of years ago, Montreal’s transit authority (STM) received an application for a bus driver position from a candidate who had injured his back in a car accident. When STM rejected him for being unfit to work as a bus driver based on medical reports indicating his condition could prevent him from operating the bus pedals over a full shift, the worker filed a discrimination complaint. STM prevailed, as both a tribunal and the Quebec Court of Appeal found that the exclusion of the worker was due to a specific skill or quality required for the job.
Taking extra care that inappropriate discriminatory reasons are not part of hiring decisions can potentially further complicate the hiring process, but it’s worthwhile in the long run – both for legal reasons and for the purpose of maximizing the talent pool. And if it reduces the chance for turnover or legal liability, it may ultimately reduce the paperwork too.
