Erica Pinsky

ARTICLE

What do Human Rights have to do with Hiring Right? In Canada, the two go hand in hand. Whether you are a job seeker looking for that dream job, or an employer searching for the ideal candidate, you should know that Canada's human rights legal framework affects all aspects of the employment relationship, starting with the employment interview. Here are a few tips on incorporating human rights laws into the interviewing process.

 

What is the Human Rights Legal Framework?

The foundation of human rights law in Canada is found in Section 15 of the Canadian Charter of Rights and Freedoms. It states that all Canadians have the right to equality of opportunity and equality of outcome without discrimination in the spheres of employment, provision of goods and services, and housing.

 

In simple terms, this means that an employer has to be open to hiring any individual that possesses the genuine qualifications for the job - the fact that the applicant is a man or a woman, married or single, a member of a visible minority or disabled should not automatically disqualify that person from being considered and hired.

 

In B.C. the legislation that deals with discrimination is the BC Human Rights Code. You can access the code here. Whether you are an employer or a job seeker, you should familiarize yourself with this important piece of legislation.

 

What is Discrimination in Employment?

Discrimination occurs when individuals are excluded, or prevented, from participating in activities or opportunities which they have a legal right to participate in. At work this might mean that someone is denied work or promotion or is treated unfairly because of their age, sex, the colour or their skin, or where they came from. The intention of human rights law is to ensure that only job-related considerations such as ability, merit and responsibility are used to evaluate applicants and employees.

 

Age, sex, race and disability are some of the personal characteristics that are referred to in human rights law as the prohibited grounds of discrimination. Each federal or provincial Human Rights Code or Act contains a specific list of prohibited grounds. In BC the prohibited grounds of discrimination in employment are race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, age, or unrelated criminal or summary conviction.

 

The law requires an employer to create and maintain a work environment which is free from discrimination and harassment. An employer is required by law to run his/her business in a way that provides equal access to jobs and other opportunities for all employees and to treat everyone in a non-discriminatory manner.

 

How To Avoid Discrimination in Recruitment?

If you are an employer, make sure you have a written job description for each position before you start your interviewing process. Structure this description on the basis of the "bona fide" or genuine requirements of the job. For example, if a position requires traveling, shift work or extended work hours, heavy lifting or other physical requirements, permits or licenses, specific educational qualifications or skills, include these facts in your job description.

 

The advantage of having a written job description is that you can use it as a guide when preparing advertisement and interview questions, and it will ensure that prospective candidates know exactly what the job entails. Human rights laws require that you do not discriminate, however, you have the right to hire the most suitable candidate for the position which you are filling. What is important from a human rights perspective is that you can defend whatever decisions you make on the basis of the genuine job requirements and the qualifications of the individuals that apply for the position.

 

Once you have prepared your job description, use it to guide you in writing your job advertisement and in preparing your interview questions. It is always preferable to have a set of written questions which you ask each candidate in an interview. This ensures that each individual who is interviewed is asked the same things and reduces the appearance of arbitrary or discriminatory treatment in the interviewing process. Of course, you should take notes of each candidate's answers and keep those on file in the odd chance that an unsuccessful candidate decides to file a human rights complaint.

 

The same principles apply when interviewing individuals for internal promotions, transfers, or in disciplinary situations or performance appraisals. Stick to a set of prepared questions that are related to the specific issue at hand.

 

What Questions Can an Employer ask in a Job Interview?

If you are a looking for work, you should ensure that you know what your rights are in an employment interview. Fundamentally, a prospective employer may ask you any questions which will help them make a decision as to whether or not you are qualified for the position you are applying for. However, an employer that knows the law should not be asking you questions that relate to your race, gender, nationality, religion or other grounds which are protected in law (please refer to the list provided above). Bring whatever documentation you may need to show that you possess the qualifications that have been advertised as being required for the position.

 

You should be prepared to answer any question that is directly associated with the genuine requirements of a job.

 

An employer may ask a candidate, "Are you within the age range of BC's legal working age?" (19-64), but should not ask his/her age or birth date.

 

An employer may ask if someone is legally entitled to work in Canada, but should not ask an individual where he/she comes from.

 

An employer may ask an individual if he/she is available for shift work or work on the weekend if that is part of the job requirements, but should not ask an individual about his/her religious practices or whether or not the individual has a family. (E.g. Ask "Are you available to work on Sunday" rather than "Do you go to church" or "Are you available for shift work" rather than "Are you married" and/ or " Do you have a family")

 

Similarly, if a position requires travel, an employer should ask an individual if he/she is available to travel and work evenings, rather than asking if he/she is married, has children, or is pregnant.

 

If an employer wants details about an individual's work history, the focus should be on the actual job experience, and on what the individual was doing, rather than the country in which the work experience took place.

 

An employer may ask an individual to provide any documentation relative to educational qualifications that are required to verify qualifications. It is the responsibility of the employer to ascertain whether or not the educational certificate is equivalent to the Canadian standard, based upon publicized standards.

 

It is a good business practice in an employment interview for an employer to ask a prospective candidate a question such as "Is there anything which may prevent you from being able to fulfill all the job requirements as they have been explained to you." This is important because if the individual tells you that she/he is are pregnant, or has a disability, or a religious practice that will interfere with her/his ability to fulfill all the job requirements, the obligation for employer to accommodate that prospective employee kicks in.

 

Human rights law requires employers to accommodate individuals that share a characteristic that is protected in human rights law. The law requires employers to accommodate disability, and other protected characteristics like race, religion and gender, to the point of undue hardship. This means that if you apply for a job and are pregnant, an employer cannot use that fact to disqualify you from the job. If you are the best candidate for the job, the employer should hire you, and then "accommodate" you as is necessary. This may mean that your employer will have to adjust some of your job tasks if your pregnancy interferes with your ability to safely perform that task. It also means that you will be able to take maternity leave when your child is born and know that your employer must hold your job for you until you are ready to come back to work.

 

If you are asked this type of question in a job interview you should be truthful about any issues within the prohibited grounds of discrimination in law that may interfere with your ability to do the job as described, even if you are worried that the disclosure may affect your chances to get the job. If you fail to do this, then accept the job and tell your new employer afterwards, your employer may believe that you are not trustworthy, and may decide to dismiss you for that reason.

 

So What Should I Do?

If you are going to be looking for employment in BC, you should take some time to familiarize yourself with the law so that you understand your rights. You should be aware of what an employer should and should not ask you in a job interview. You should figure out ahead of time what you will say or do if a potentially discriminatory question is asked in a job interview, and then you should think about whether or not you will want to work in a company that may, knowingly or unknowingly, condone discriminatory practices. Think about the kind of work environment that you will feel comfortable in, and use the employment interview as a source of information for you to help you decide if this position is the right one for you.

 

If you are an employer, you should also take the time to familiarize yourself with the law so that you understand your human rights obligations. In today's tight labour market, you need to position your business so that you can attract and retain the best and the brightest that the market offers. Incorporating good human rights practices in all aspects of the employment relationship, from the hiring interview onwards, makes good business sense.

Contact