Human Right Considerations when Hiring

When building a selection process for your school or school district, remember that you are responsible for ensuring that all elements of your hiring process comply with legislation. This involves many considerations – from implementing a process that does not discriminate against applicants to appropriately collecting and storing information. All individuals involved in the hiring process – and not just those from the human resources department – must be aware of their legal obligations. Anyone involved in the process who meets and assesses candidates must be familiar with the relevant legislation. Although it doesn’t happen often, an applicant has the right to challenge a hiring decision or to request information about why they were not selected for a position. If your district is faced with such a challenge, you will want to have evidence that all people involved in the selection process were aware of and in compliance with their legal obligations.

Canadian employees are protected against discrimination and harassment by way of human rights legislation. Every province has its unique Human Rights Code and this legislation applies to all aspects of the employment relationship, including recruitment and selection. In the hiring process, you can only discriminate against someone in the listed prohibitive grounds if you can establish that there is a legitimate occupational requirement to do so. To justify a discriminatory rule or qualification as a legitimate occupational requirement, the employer must prove that the rule or qualification was:

• adopted for a purpose connected to the performance of the job, such as safety standards, and

• imposed honestly and with the good faith belief that it is necessary to fulfil a legitimate work-related purpose or goal, and that it is impossible to accommodate the individual employee without experiencing undue hardship.

Employers may find themselves unintentionally violating the Human Rights Code. For example, your application form might indirectly ask candidates to provide information related to the list of prohibited grounds or your interviewers may ask questions about family relationships or ethnic heritage. Even if these questions are couched in casual conversation at the beginning of an interview, you may be veering into prohibited territory.

You can take steps to ensure compliance with the Human Rights Code by always linking all aspects of your hiring process to clearly-defined selection criteria for the position. Also, keep an open mind during the interview and do not let any unconscious discrimination creep in. For example, you cannot judge someone’s physical capability to perform a job by assessing their height and weight. You do not want to screen out qualified women or people of smaller stature under the assumption that they do not have the strength to perform the job.

The Canadian Human Rights Commission has an excellent document listing what to avoid and what to do when structuring a hiring process. It is a great resource!

Have more questions? Get in touch with us or seek legal advice in your specific jurisdiction. Being proactive is well worth the effort!

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