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Discrimination during the Job Interview and Hiring Process

Discrimination in the course of a job interview or in the making of hiring decisions remains too common across Ontario. While the job interview is an opportunity for both employers and job seekers to learn about each other and to determine suitability or fit for the job at hand, attempts by an employer to solicit information that relate to the “protected grounds” (i.e. race, age, sex, gender, identity etc.) under the Ontario Human Rights Code is generally off limits.

Ontario workers are protected from discrimination even at the pre-hiring, interview or application stage of employment. It is important, therefore, for both employees and employers to understand what questions are appropriate and which are not.

This article will review some of guidelines around pre-employment screening during the interviewing and hiring process.

Job Interview Guidelines

Issues of human rights and discrimination need to be addressed by an employer in advance of the job hiring process. Hiring managers and human resources staff need to be provided with training and education to identify and eliminate discrimination in the workplace. The hiring process must be fair.

Best practices for employers in the course of job interviews include:

  1. Have a multi-person panel conduct formal interviews and have the panel reflect the diversity available in the organization.
  2. Develop a set of interview questions in advance and ask all applicants the same questions.
  3. Base the questions on the job’s essential duties and “bona fide” requirements.
  4. Make sure that any questions asked comply with the Human Rights Code and avoid questions requesting “sensitive information” unless necessary.
  5. Create an answer guide showing desired answers, along with a marking scheme, and have each panel member independently record and score each candidate.

Employers should avoid making hiring decisions based on informal or subjective assessments by the interviews because these “feelings” of suitability are more likely to lead to subconscious biased hiring decisions.

Requesting Sensitive Information in the Job Interview Process

Sometimes information, that could be seen to be related to a ground of discrimination under the Human Rights Code, is necessary because of the specific requirements of a job. Where this is the case, the Ontario Human Rights Commission recommends only requesting that information after an offer of employment is made that is conditional on the employee meeting the bona fide occupational requirements.

Types of information that is considered sensitive include:

  • Driver’s licence
  • Birth certificate
  • Work authorization issued by Immigration Canada
  • Educational or professional credentials
  • Social Insurance Number
  • Information about health or age necessary for pension, disability, superannuation, life insurance and benefit plans
  • Police record checks
  • Drug and Alcohol Testing
  • Psychological testing, if legitimately required for assessing ability to do the job
  • Next-of-kin or person to be notified in case of emergency
  • Insurance beneficiary
  • Accommodation needs

These documents and information are sensitive because they often reveal a person’s age, sex, gender, place of origin, date of arrival in Canada, residency status, gender identity, family status, marital status, sexual orientation or disability.

For example, considering hiring a truck driver. While they need to have a valid driver’s license, an employer should avoid asking to see their driver’s license until after a conditional offer of employment is made to avoid any claim of discrimination related to their gender identity, age or disability.

What is a Bona Fide Occupational Requirement?

As I have described briefly in my earlier article on Age Discrimination and Forced Retirement, the Courts consider a two-part test for determining whether a bona fide occupational requirement exists:

  1. The employer must establish that the retirement was imposed honestly, in good faith, and in the belief that the requirement is rationally connected to the performance of the job, and not for some ulterior motive; and
  2. The employer must establish that the job requirement is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.

Any bona fide occupational requirement must be inclusive and must accommodate individual difference up to the point of undue hardship. It is important that each person be assessed against their own personal abilities instead of being judged against group characteristics.

Drug and Alcohol Testing and Discrimination during the Job Interview and Hiring Process

It is discrimination on the basis of disability to require job applicants to take a drug or alcohol test as a part of an application or interview screening process unless the employer can satisfy the Bona Fide Occupational Requirement (BFOR) test. Whether a drug or alcohol test is a BFOR is often the source of human rights litigation.

An excellent example of how a Human Rights Tribunal wrestles with this problem can be seen in the case of Dennis v Eskasoni Band Council, 2008 CHRT 38. In this case Dennis argued that the employers drug and alcohol testing discriminated against people with alcohol addiction and dependency. The employer argued that the testing was necessary to ensure the safety of its workers.

The Test followed by the Tribunal was as follows:

  1. Does the practice appear discriminatory?
  2. Has the Employer Established it to be a BFOR?

In terms of the first part of the test, the Tribunal held as follows:

[66] A drug testing policy that has the effect of depriving these individuals, who fall within the protected class of disabled persons, of employment opportunities, is thus prima facie discriminatory

It then went on to consider:

  1. Did the employer adopt its policy for a purpose rationally connected to the job being performed?
  2. Did the employer adopt the testing in good faith?
  3. Is the testing reasonably necessary to the accomplishment of the purpose or goal of safety in the workplace, including:
    • Is alcohol impairment a safety hazard?
    • Is the drug and alcohol screening an effective means to detect the presence of a hazard in the workplace?

Ultimately, the Tribunal concluded that the employer’s drug and alcohol testing policy was reasonably necessary for the accomplishment of the employer’s goals of protecting its employees from injury and its property from damage.

Criminal Background Checks and Discrimination during the Job Interview and Hiring Process

The Human Rights Code prohibits discrimiantion on the basis of “record of offences”. Further, crimnal background checks can uncover information about a candidate’s age, citizenship and other “protected grounds”. Therefore, like drug and alcohol testing, it is discrimination to require job applicants to subject to a criminal background check as a part of an application or interview screening process unless the employer can establish that it is requires as a Bona Fide Occupational Requirement (BFOR).

If an employer wants to conduct a criminal background check, they have to first establish that there is a valid occupational reason to do so. The job application and/or conditional offer must clearly specify the check is necessary as part of the position. Written consent is a required.

Any type of background check should be conducted in good faith. An employer should gather as much information as possible before hiring a candidate and be reasonable about the relevance of the information gathered as it relates to the candidate’s ability to perform the job.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

 

Age Discrimination and Forced Retirement

Currently, there are approximately 1.5 million older persons in Ontario. By the year 2021, Ontario will be home to three million people over the age of 65. Older workers make a valuable contribution to this province every day.

The Ontario Human Rights Code (the “Code“) states that it is public policy in Ontario to recognize the dignity and worth of every person and to provide equal rights and opportunities without discrimination. Employment is central to an individual’s financial health, sense of worth, dignity as well as their satisfaction in feeling able to participate fully in society and be a part of a community.

So, are People Age 65 and Older Subject to Mandatory Retirement?

The answer is no, with limited exceptions.

This article reviews when mandatory retirement is permitted in Ontario. We will review:

  • Some of the protection available under Human rights legislation;
  • Explore how courts evaluate age discrimination cases and cite a couple of tribunal cases where age discrimination was allowed; and
  • Finally, we will offer some pointers for employers and outline the steps employees can take to file a claim.

The History of Mandatory Retirement

Until December 31, 2009, the mandatory retirement age in Canada was 65. At age 65, an employer could terminate your employment for the simple reason of your being 65.

The Federal government prohibited mandatory retirement in 2009. However, the prohibition against mandatory retirement has two exceptions — Supreme Court justices who must retire at age 75 and judges, magistrates and justices of the peace in Provincial courts who must retire between 70 and 75.

Other than these two exceptions, there is no law in Ontario that requires persons to retire at any age. In theory, employees can work until they no longer wish to do so or are incapable of performing their jobs.

What is Age Discrimination and How are Workers Protected?

Imposing an employment decision (such as forced retirement) based solely on age and not on the ability to do the job, is age discrimination under the Code.

In Canada, both federal and provincial human rights law protects Canadians from age discrimination. Ontario`s Human Rights Code protects anyone aged 18 and over against discrimination in employment on the basis of their age.

The Code specifically prohibits mandatory retirement – protecting employees aged 65 or more from being forced to retire, except in cases where the retirement age can be justified as a “bona fide occupational requirement”.

A bona fide occupational requirement is an employment requirement or qualification that is necessary because of the nature of the employment.

One example of bona fide occupational qualifications is mandatory retirement ages for bus drivers and airline pilots for safety reasons.

Persons aged 65 and older who believe that they have been discriminated against on the basis of age, including through mandatory retirement policies, may file a claim of discrimination on the basis of age with the Ontario Human Rights Commission.

The Bona Fide Occupational Requirement Test (BFOR)

The Courts justify discrimination through a test called “Bona Fide Occupational Requirement” (BFOR) which is a standard or criteria that allows an employer to “discriminate” based on an otherwise prohibited ground, if and only if there is a legitimate reason that is connected to the employee’s ability to do the job.

The “test for a BFOR” in the context of age discrimination was discussed in 1982 by the Supreme Court of Canada in Ontario v. Etobicoke. In this case, the complainant, a firefighter, was required to retire at age 60.  The Court set out a two-part test to determine whether a mandatory retirement scheme is justifiable:

  1. Subjective component: the employer must establish that mandatory retirement was imposed honestly, in good faith, and in the belief that the limitation is in the interests of the adequate performance of the work, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the [Human Rights] Code.
  2. Objective component: the employer must establish that the retirement plan is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.

What’s the Bottom line?

The bottom line is that it is contrary to law for employers to require employees to retire at a fixed age, whether it be 65, or older or younger, unless the employer can establish to the satisfaction of the court or the Human Rights Commission that the established age is based on a bona fide occupational requirement.  So it is the exception, not the rule, where mandatory requirement is allowed

Employers must be able to provide evidence that the retirement age is justifiable in law. This can be best achieved through the development and communication of a retirement policy that sets out the objective justification for the retirement age. Such policies can later be relied upon in the event of any claim.

Age Discrimination Tribunal Case Review

In Kearns v. Dickson Trucking Ltd. (1988), 10 C.H.R.R. D/5700 (Can. Trib.) a 69-year-old salesman was terminated despite excellent performance. The first time the alleged reason for termination was raised was in the termination letter. The reason given was that there would no longer be a need for his position. However the employee was not declared redundant and the position was filled by a younger person. A case of age discrimination was successfully made out.

In Salter v. Newfoundland (2001), 41 C.H.R.R. D/68 (Nfld. Bd. Inq.) [Hereinafter “Salter”], the tribunal found that the factor of being a pension-eligible employee was considered in making the determination to declare the claimant redundant and that this was synonymous with considering his age. Age discrimination was found in the case.

What these two cases tell us is that an employer cannot avoid the prohibition on mandatory retirement by trying to lay off employees based on redundancy, where the real motive is age related. 

Lessons for Employers:

Employers are bound by three rules in the Code as follows:

  1. They cannot refuse to hire, train or promote people because of their age;
  2. They cannot unfairly target older workers, or other age groups, when it comes to reducing staff or reorganizing; and
  3. They must make sure that the workplace is free from discrimination, is inclusive, and respects and supports the needs of all its workers, including older employees.

In our aging population, age discrimination is common and is on the rise. Claims of age discrimination due to forced retirement are becoming increasingly common and can be costly to employers

Employers can have mandatory retirement programs based on a certain age but these programs must be based on a bona fide occupational requirement for performing the job.

Employers can protect themselves by taking the following steps:

  • Have a retirement age in place which is fixed and communicated clearly to employees, along with the explanation for why this age has been determined to be a necessary qualification for the job.
  • Incorporate the fixed retirement age in a “retirement policy” that sets out the objective and justification for that “fixed retirement age”
  • Take measures to provide a workplace that is free of ageist stereotypes and that provides an environment where older workers are treated as individuals, assessed on their own merits instead of against presumed group characteristics
  • Ensure older workers are subject to the same performance management practices as every other worker
  • Define the eligibility criteria for any voluntary retirement program
  • Share the criteria with all staff, irrespective of age, through a neutral medium such as a written document

Tips for Employees:

If you feel you are experiencing age discrimination at work there are a few things you can do:

  • If you need human rights legal advice or help filing an application with the Human Rights Tribunal of Ontario, contact the Ontario Human Rights Legal Support Centre at: 416-597-4900 or 1-866-625-5179 and speak with a Human Rights lawyer.
  • To file an application with the Human Rights Tribunal of Ontario, visit their website and follow the instructions for how to file an application.
  • To learn more about your rights, responsibilities and options, contact/hire an employment lawyer

Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.