Bad hires can be costly, but rejecting candidates for discriminatory reasons is even more problematic
A company is only as good as the people who make up its workforce. It’s safe to say that in most cases, a company with productive and efficient employees is going to be more successful than one with disorganized, lazy, and discontent workers.
And that’s why the hiring process can be so important — while developing staff is important too, the higher quality of people an organization can bring on in the first place, the better quality of people will be the veterans later on.
However, a recent study found that the majority of senior managers have recruited the wrong candidate for a role, and the negative impact of such a mistake has increased over the past year. In addition, the pandemic has forced employers to quickly change many of their hiring processes, which has led to more mistakes being made. The unfortunate result is added costs from turnover and lower productivity.
But mistakes that companies make during the recruitment process aren’t limited to bringing aboard people who end up being wrong for the job or aren’t a good fit for the company’s culture. Employers have to be careful that they don’t overlook someone who might be right for the job — or at least is as good a candidate as anyone else — for reasons that are related to protected grounds under human rights legislation. That could lead to discrimination liability over someone who may not even have been an employee.
A decade ago, immigration research centre Metropolis British Columbia conducted a study involving 8,000 resumés with similar qualifications — some with common Anglophone names and some with popular Greek, Indian, or Chinese ones — for online job postings in Toronto, Montreal, and Vancouver. The study found that the resumés with Anglophone names were significantly more likely than the others to receive a callback in all three cities. Unconscious bias or intentional discrimination? Either way, the result is the same.
In early 2020, social media platform Facebook made the news when it announced it was restricting Canadian advertisers’ ability to target ads that were specifically offering employment opportunities based on age, gender, postal code or any other detailed options “describing or appearing to relate to protected characteristics.” It announced similar changes in the U.S. in late 2019. Facebook has had its problems, but ultimately it had to acknowledge how common is for employers to discriminate in their hiring practices after civil rights organizations in the U.S. and the Canadian Human Rights Commission raised the issue.
A couple of years ago, Imperial Oil’s policy that graduate engineer applicants had to be eligible to work permanently in Canada was ruled discriminatory by the Ontario Human Rights Tribunal. An international student with student visa applied for a permanent, full-time engineer position before he graduated from university. He was going to be eligible for a postgraduate work permit for three years, which would permit him to work anywhere and with anyone in Canada. He expected that he would get permanent residency after that and planned to settle and work in Canada indefinitely.
However, Imperial Oil required either a Canadian birth certificate, Canadian citizenship certificate or Canadian certificate of permanent residence and when the student couldn’t provide that, it rescinded the offer of a job for which he was the top candidate. The tribunal found that the permanence requirement was directly discriminatory on the ground of citizenship, noting that the Ontario Human Rights Code stipulates that any requirement that distinguished on the basis of either “Canadian citizenship”, “permanent residence” status or “domicile in Canada with intention to obtain citizenship” was discrimination: see Haseeb v. Imperial Oil Limited, 2018 HRTO 957.
However, employers can have limits on job candidates that may seem discriminatory but aren’t. Last year, the Quebec Court of Appeal upheld a decision by the province’s human rights tribunal that Montreal’s public transit agency, Société de transport de Montreal (STM), didn’t discriminate against a job candidate based on disability. The job candidate applied for a bus driver position but STM concluded that he was medically unfit for the job after reviewing medical reports of a lumbar sprain in his back following a car accident. The reports indicated that he could have trouble operating the pedals of a bus over the course of a full shift.
The tribunal sided with STM, finding that the Quebec Charter of Human Rights and Freedoms states that excluding a job candidate based on the qualifications for a job isn’t discriminatory. Most jurisdictions across Canada have similar exceptions where “bona fide job requirements” are involved.
Special exceptions notwithstanding, employers must be careful that unconscious bias or ingrained discrimination are not affecting their decisions when considering job candidates. Bad hiring decisions can be made for various reasons, but if any of them are based on discriminatory ground, they can add legal liability to their troubles.
