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Human rights to be considered before hiring

Posted: October 2, 2018 by Carole McAfee Wallace

Terminated employees have been known to raise human rights complaints, claiming that a termination should have been prohibited under applicable human rights legislation, or that an employer failed to accommodate a disability to the point of undue hardship.

A recent decision of the Ontario Human Rights Tribunal, in Haseeb v. Imperial Oil Limited, is a good reminder that an employment-related human rights complaint can arise even before an employee starts working.

In this case, the applicant was an international student completing his professional engineering degree at McGill University. He applied for a position as an engineer with Imperial Oil, had a student visa, and on graduation would be eligible for a post-graduate work permit for a three-year term.

Imperial Oil also required engineers to have either permanent residency or Canadian citizenship to be eligible for the job. That requirement was set out in the job posting, the online application form, and in the questions asked during the interview process. The applicant said he met this requirement and was offered the job.

He was then asked to provide proof of his eligibility. When he couldn’t, the offer was withdrawn. The applicant then launched a human rights application seeking damages for the breach of his human rights.

Under the Ontario Human Rights Code, discrimination based on citizenship is not discriminatory if Canadian citizenship is a requirement imposed or authorized by law. But that was not the basis for Imperial Oil’s requirement. The company had implemented a policy that all entry-level engineers had to be able to work in Canada permanently to address the significant investment it made in new employees, and to further its goal of developing lifelong corporate employees.

The Ontario Human Rights Tribunal found that Imperial Oil’s job posting, application form and questions during the interview process all included questions about the applicant’s ability to work permanently in Canada — and as a result, breached the human rights legislation. The tribunal found that Imperial Oil had discriminated against the applicant based on citizenship.

The tribunal also found that Imperial Oil couldn’t rely on a defence that  being able to work in Canada permanently was a bonafide occupational requirement. This is because the requirement was not linked to the performance of essential job tasks, and also because Imperial Oil had waived the requirement for business reasons in other cases.

As an aside, the human rights tribunal found that the applicant’s dishonesty when saying he could work in Canada permanently wasn’t relevant to deciding whether the Human Rights Code had been breached.

Damages have yet to be assessed, so we don’t know how much this is going to cost Imperial Oil.

With respect to citizenship, place of origin or ethnic origin, unless there is a requirement authorized by law, an employer can only ask whether someone is legally entitled to work in Canada. That’s all, at least up until a conditional job offer is made.

Additional information or documents like an authorization issued by Immigration Canada can be obtained after that, as long as these details are a bonafide requirement for a position.

Even asking for something as seemingly simple as the form of address (Mr. Mrs. Miss, or Ms.) is a minefield because it discloses marital status, sex and sexual orientation.

Employers are well advised to review their recruiting activities — from job postings, to application forms, and interviewing procedures — to ensure they don’t discriminate based on grounds prohibited under human rights legislation.

An employer who sets a requirement that may be seen as discriminatory bears the burden of proving it is a bonafide occupational requirement.

  • Carole McAfee Wallace is counsel at Fernandes Hearn LLP, and can be reached at 416-203-9551. This column is intended for information purposes only and does not constitute legal advice.

 

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