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The recruitment process is generally responsible for more incidents of discrimination than any other area of employment. In general, employers understand that overt and explicit acts of discrimination, otherwise known as direct discrimination, cannot play any part in determining the best candidate for a role. However, it is very common for subtle or unintentional forms of discrimination, otherwise known as constructive discrimination, to seep into the hiring process.

Accordingly, we discuss some measures that employers are encouraged to consider implementing into their hiring process to avoid unintentional discrimination and to reduce the likelihood of facing potential claims of discrimination.

Ensure Job Description Requirements are Essential

A job description or job posting is likely the first interaction a potential candidate will have with any employer. Employers, therefore, should ensure that the job requirements for the position are truly essential and substantial components for the position being advertised. Postings that are filled with requirements that are not essential to successfully carry out the role may be deemed exclusionary and, therefore, potentially discriminatory.

Further, if a job requirement interacts with a prohibited ground as outlined in human rights legislation, the requirement should be carefully reviewed and scrutinized by the employer to determine whether it is truly a bona fide occupational requirement of the role that would allow the candidate to be successful at the position being advertised. For example, if a driver’s license is required for a position, an employer should ensure that driving is an essential component of the position rather than a task that is scarcely required. The reason for this is that such a requirement may discriminate against a potential candidate who is prevented from obtaining a driver’s licence due to a physical disability.

Lastly, employers are encouraged to utilize non-discriminatory language throughout a job posting, such as gender-neutral titles and pronouns to ensure they are being inclusive of all applicants.

Where to Advertise Job Postings

Where an employer posts a job advertisement may also give rise to a claim for discrimination. Specifically, it is recommended that employers utilize formal and well-known websites to advertise their job postings, including, but not limited to Job Bank and Indeed. This will ensure employers are not eliminating suitable candidates from their recruitment process through internal advertising networks or word of mouth. If the work environment is already homogenous, then word of mouth typically only produces candidates of a certain ethnic background, thus re-enforcing the status quo.

While it is not illegal to hire through word of mouth, should an employer face a discrimination claim, it will not appear favourable to the employer when the human rights tribunal reviews this aspect of the recruitment process.

Job Application Questions

An employer may utilize a job application and/or questionnaire to obtain information that will be used to formulate a decision regarding who the best candidate for the position is. As such, employers should refrain from asking any questions to elicit information that can be used to directly or constructively discriminate based on protected grounds. For example, asking about a candidate’s name, address and employment history may be deemed acceptable. However, we recommend that employers refrain from asking questions related to an applicant’s age, religion, sexual orientation or any other protected ground under applicable human rights legislation.

Conducting Job Interviews

Hosting job interviews can be challenging for employers from a human rights standpoint. While it may be tempting to converse informally about a candidate’s personal life, it is important not to ask questions that may elicit information protected by human rights legislation. To aid in this regard, it is recommended that employers implement a standardized set of questions that is prepared and utilized for every candidate. If any personal information is revealed by the candidate, it may be permissible to discuss, however, caution should still be exercised.

It is also recommended that a panel is utilized during interviews such that multiple impressions can be shared of the candidate, therefore reducing individual bias. Furthermore, if any discrimination claims are made after the fact, the employer will have multiple witnesses to recall any incidents or dispute false claims.

Pre-Employment Testing

Pre-employment testing such as medical, fitness, and/or drug tests should be approached carefully as these tests can potentially discriminate against candidates for reasons protected by human rights legislation. Generally speaking, it is best to utilize these tests only once a conditional offer has been extended to a prospective employee.

Further, depending on the type of test conducted and the results, an employer may have a positive duty to accommodate candidates.

Hiring Process Best Practices

Employers are encouraged to be proactive in the hiring process to avoid instances of discrimination. To summarize, this will include, but is not limited to, the following practices:

  • Ensure job requirements are formulated based on essential and substantial elements of a role, rather than requirements that may be considered an asset to the role;
  • Advertise for positions on formal and well-known job advertisement platforms;
  • Refrain from asking questions that be may be related to a protected ground under human rights legislation;
  • Standardize the questions asked during the recruitment process for all applicants;
  • Implement a panel-style interview process for all applicants; and
  • Limit the use of pre-employment testing (i.e., medical, fitness or drug-testing) and/or reserve pre-employment testing for prospective employees who have received an offer of employment.

Contact the Employment Lawyers at Sultan Lawyers in Toronto for a Discrimination-Free Hiring Process

If you have questions about preventing discrimination during the hiring process or believe that a prospective employer has discriminated against you based on a protected human rights ground, please contact Toronto employment lawyers, Sultan Lawyers, at (416) 214-5111 or here.

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