Chapter 2 - Hiring

Chapter 2 – Hiring

• Blatant forms and other forms of discrimination are no longer tolerable in the workplace because we now have a HR Code that applies in Ontario workplaces

• Ontario’s HR statute prohibits discrimination on the basis of at least 16 grounds. Having said that, there are exceptions to some of these grounds and protection is not always absolute

• BFOR and undue hardship are great examples

  • To be considered a BFOR, a contested job requirement must pass the 3-part test set out by Meiorin case — the discriminatory rule/requirement must be

    • Adopted for a purpose rationally connected to the performance of a job

    • Adopted in an honest belief that it was necessary to satisfy a legitimate business purpose; and

    • Reasonably necessary to accomplish that purpose (show it’s impossible to accommodate that group without creating undue hardship for itself)

  • Where a provision is silent or ambiguous about an issue, the courts and tribunals often use the preamble as an internal aid in deciding to interpret the Code in its broadest sense

  • “Employment” includes unpaid internships

• The HR Code is quasi-constitutional law, so if there is a conflict between the Code and another Ontario law (ex. Employment Standards Act), the Code prevails unless otherwise specifically seated 

• Special service organization exemption — a religious organization that operates without profit can require counsellors to be of the relevant religious faith (since it relates to the job function) but not janitors (since it would not relate to job function)

  •  Trade union: an association formed for the purpose of representing a group of employees in all aspects of their employment relationship with their employer 

• More exemptions

  • Affirmative action programs

  • Medical or personal attendants

  • Nepotism and anti-nepotism policies

•  Is basing seniority on “days worked” discriminatory?

  • No

  • The tribunal found that given the sporadic and unpredictable nature of casual work, a negotiated seniority clause providing for seniority based on days worked was reasonable, regardless of the reason for not working

• To prove a prima facie (on the face of it) discriminatory case, the applicant has to 

  • Show that they are a member of a group protected by the Code

  • That they were subject to adverse treatment 

  • That there was a connection between the adverse treatment and the ground of discrimination

  • → then the onus shifts to the employer on a balance of probabilities

• Nepotism policies: employer policies that allow an employer to discriminate in favour of, or against, specified close relatives of employees

• Obesity is only considered a disability if it results from an underlying physical condition

HR Code s17: the employer must eliminate the non-essential requirements of the job and modify the existing job requirements to enable a disabled person to carry out the essential job duties unless this causes undue hardship to the employer

Importance of the HR Code in Ontario

• This statute is considered to be remedial – therefore, it is given a broad and liberal interpretation 

  • Remedial legislation: law intended to right a societal wrong and provide a remedy, rather than to punish an offender

• This statute is considered to be quasi constitutional – so it is given preference over all other employment statutes

• This statute is considered to be evolving and it is capable of expansion (it is not to be interpreted as being frozen in time)

HR Code’s applicability to employment

• The Code applies

  • To full time and part time employment

  • To contract work and contractors

  • To unionized and non-unionized employees

  • To probationary employees

  • To unpaid internships

  • In some cases, to volunteer work as well

Specific Code Protected Grounds in the HR Code

• Race – this ground is not a defined ground, but can be combined with other grounds such as colour or ethnic origin

• Colour – colour refers to skin colour

• Ancestry – ancestry refers to a person’s family descent 

• Place of origin – place of origin refers to country or region of birth

• Ethnic origin – the ground of ethnic origin has a cultural component to it; therefore, this ground is not limited to recent immigrants to Canada 

• Ground of language – while “language” is not a defined ground of discrimination in the Code, it can be an element of complaint in an application based on the grounds of ancestry or place of origin

• Citizenship – citizenship refers to discrimination based on a person’s citizenship status, including status as a permanent resident, refugee, or temporary resident 

• Creed – this ground protects an employee’s religion or faith in 2 ways

  • Prohibits one person from attempting to force another to accept or comply with a particular religious belief or practice

  • It requires an employer to take positive measures in the workplace, such as allowing for breaks for prayer at certain times

  • Note: Creed doesn't extend to political beliefs – so an employee who is discriminated against because she is a member of a particular political party probably can’t file a successful application on the basis of creed

• Gender – this ground includes males and females; and includes protection against discrimination based on pregnancy 

• Gender identity and gender expression – these are new grounds that can be relied upon by transgendered individuals in the workplace (the gender that a person self-identifies with must be respected in the workplace)

  • Doesn’t have to be the same as the gender listed on their birth certificate, nor do they have to have undergone sexual reassignment surgery → it can be their “felt-gender”

• Age – an employee can’t be terminated based on ageism (Cowling case: where an employee’s contract was not renewed because the job was re-classified as a “permanent growth” or “developmental position” that was meant for a younger person and not for Cowling who was a 59-year olf employee)

• Record of offences (Ontario) – means convicted provincial offences or pardoned federal offences; but this ground of discrimination excludes

  • Criminal offence convictions for which no pardon has been obtained

  • Discrimination in employment on the basis of being charged with a crime

  • Terminations by an employer for an employee’s failure to report to work based on a period of incarceration arising from a criminal conviction

• Marital status – this ground protects an employee from being discriminated against based on their marital status of based on the identity of their spouse

• Family status – this ground protects parents, and it includes an employer’s duty to accommodate for family obligations arising from family status

  • Example: a parent of a child with a disability who loses his job because his manager will not provide a flexible work schedule so he can take his child to medical appointments during work hours may be able to rely on this ground

• Disability – this ground includes physical, psychiatric, perceived disabilities, substance abuse issues, and disabilities for which disability benefits were claimed under the WSIA

• Overqualification isn’t protected (but you could link it to another ground)

  • Neither is political belief 

Additional grounds

• Discrimination because of association 

  • An employee can’t be discriminated against based on his/her relationship with people identified by a prohibited ground

  • Ex. an employee can’t be denied a position because they associate with a person of a certain religious belief

• Discrimination through reprisal 

  • Reprisal occurs where an employer punishes an employee for asserting his rights or for refusing to discriminate against another person

  • If this happens, the applicant can file under s8 of the HR Code

Must an employer’s decision to terminate an employment contract be based entirely on a discriminatory ground to attract the censure of the Code?

• No, a prohibited ground of discrimination only needs to be/show one factor in the employer’s decision to terminate for the termination to be discriminatory

• Ex. if an employee can show that her pregnancy was one factor in the employer’s decision to terminate her employment contract, this will amount to a discriminatory termination, contract to the HR Code

• Even if the employer also had performance reasons for the termination

Statutory Exemptions: Where Discrimination is allowed

• Special Service Organizations

  • The right to equal treatment in employment is not infringed where a special service organization gives employment preference to members of that group (ex. Religious, educational, colour, age, etc), only where the exception is reasonable (BFOR)

• BFOR

• Nepotism Policies

  • S 24(1)(d) authorizes both nepotism and anti-nepotism policies

• Medical or Personal Attendants 

  • A person may refuse to employ someone on the basis of any of the prohibited grounds where the primary duty of the job is attending to the medical or personal needs of the person (or ill child, relative of the person, ill/aged spouse, same-sex partner)

• Special (Affirmative Action) Programs

  • Special programs: an employer program aimed at relieving hardship or promoting the employment status of disadvantages groups

  • Affirmative action: a policy designed to increase the representation of groups that have suffered discrimination

Conditional offer of employment: a job offer that is subject to certain requirements being met

It’s been said that the selection/hiring process is probably responsible for more discrimination than any other area of employment practice

An employer that alleges undue hardship must prove it on a balance of probabilities 

How can an employer avoid committing discrimination and violating the Code during a hiring process?

• Accommodate a job candidate’s disabilities or religious observances – including candidates who miss interviews for disability-related reasons

• Have a standard set of questions for each job candidate – this practice avoids the perception that candidates were treated differently based on Code prohibited grounds

• Use interview teams for each job interview – if several people can recall what occurred in the interview room, this can stave off an allegation of discrimination

• Beware of prohibited grounds of discrimination when asking your interview questions – interviewers should not ask questions concerning a candidate’s religion or a perceived disability, for example

Class participation activity →  to be done at the beginning of next week’s class