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Beware of Discriminatory Hiring Practices

By: George Waggott, founder and Roberto Fonseca-Velazquez, summer law student,

George Waggott Law

With increased globalization, individuals are choosing to uproot themselves from the country they were born in and settle elsewhere in the world. As cities become more and more diverse, so do offices and organizations. Writing from Toronto, one of the most diverse cities in the world, we have seen an increase in talent flock to the city to call the Greater Toronto Area their new home. With this increase in global talent, employers have an obligation to ensure that their hiring practices do not discriminate against any applicants who interview with them.

According to the Human Rights Tribunal of Ontario’s decision in Haseeb v Imperial Oil, care regarding potential discrimination claims includes a close review of potential questions regarding a candidate’s eligibility to work in Canada on a permanent basis. The Tribunal’s decision in Haseeb states that the requirement that a candidate be eligible to “work in Canada on a permanent basis” is discriminatory under the Ontario Human Rights Code in two respects. First, using the “permanence requirement” as a factor in a decision not to hire a candidate constitutes discrimination in employment because of citizenship. Second, a policy of requiring a job applicant to disclose in writing and verbally that she or he is a citizen or permanent resident of Canada is prohibited conduct in violation of the Code.

This decision is very important for employers in Ontario and elsewhere in Canada. Even though many employers will have good intentions in asking questions about “permanence” and the intentions of candidates, that does not make the questions permissible. For example, an employer may ask questions about the person’s status in Canada to ensure that a great candidate is not forced to leave their organization in several years’ time. Or an employer may ask this to assist in succession planning for their workforce. The Haseeb decisions makes it clear, however, that regardless of the intention of the employer, these types of pre-employment questions cannot be asked of candidates. Further, the Tribunal can and will award significant compensation to individuals if there is similar evidence that an employer’s reason for not hiring them were discriminatory. (In the application by Haseeb, the amount awarded was $101,363.16). So, for fiscal reasons alone, these hiring practices should be avoided.

Some key takeaways for employers:

  1. Review your hiring policies and practices. Ensure that any practice or policy you have in place reflects the rules as provided for under applicable law. This will also include being mindful about any restrictions associated with asking about “Canadian experience, which is likely prohibited.

  2. Train your team. Often many individuals are involved in the hiring process of a candidate. Some of these individuals may not have formal human resources training which includes knowledge of discriminatory and illegal interview techniques. Make sure all individuals involved in the process are aware of what they can and cannot ask a candidate. Typically, this is best reinforced by formal training of anyone involved in the process and or a written manual dispersed to the team.

  3. Closely review eligibility at the time of hiring. This decision and applicable law does not prohibit an employer from asking about a candidate’s eligibility to work in Canada at the time of hiring. Of course, it is prudent to ensure your workforce is eligible to be working. However, requiring permanency or insisting upon specific “Canadian experience” is discriminatory for the reasons noted above.

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