Section 4 - Protecting Worker's Rights

Lesson 16 - Human Rights and the Hiring Process

In this lesson you will examine how human rights legislation works to protect workers during the hiring process.

When hiring (and promoting) workers, employers have a responsibility to follow laws designed to protect workers' rights. The list that follows shows the chief responsibilities employers have in this respect. They appear in many provincial codes and are pretty well standard from coast to coast.

Employers must:

• hire and promote the most suitable candidates for specific positions
• consider job-related qualifications and experience
• establish measurable standards for evaluating job performance
• set employment terms that conform with the minimum standards specified by law
• establish salary or wages scales, either independently or through negotiation
  
  
  

Advertising Jobs

You have likely seen a good many job advertisements in your life, but you probably haven't thought much about them. The fact is, though, that employers have to be careful about how they word their job ads. For example, advertisements that would discourage a qualified person of a particular race, gender, age, religion, and so on from applying for the job aren't allowed; Alberta's Human Rights, Citizenship and Multiculturalism Act prohibits discriminatory practices of this sort.

Bona fide occupational requirement: a legitimate job requirement that makes it reasonable for an employer to hire people from some groups over others.

Sometimes discrimination in job advertisements isn't so easy to pick out. For example, an ad that contains the requirement of "Canadian experience" will discourage qualified applicants who haven't been in Canada long; and for the most part these recent immigrants will likely belong to minority ethnic and language groups. Advertising of this sort is prohibited unless "Canadian experience" is a genuine and reasonable job requirement.

Section 8(1) of Alberta's Human Rights, Citizenship and Multiculturalism Act stipulates that nobody can create a job ad or application form that discriminates on the basis of race, religion, colour, gender, disability (mental or physical), age, ancestry, marital status, place of origin, family status, or source of income.

Of course, some jobs really do require people with specific physical characteristics-a bona fide occupational requirement; for example, a blind person simply wouldn't qualify as a school-bus-driver. For this reason, subsection 2 of Section 8 of the Human Rights, Citizenship and Multiculturalism Act reads

Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide [that is, honest] occupational qualification.

This means, as you've read, that in some cases a job ad can discriminate-as long as the employer can justify this as genuinely necessary.

Most employers do their best to obey the laws against discrimination. For example, you'll frequently see ads like these:

• Welder (M/F) Required
• Seamstress (M/F) Required

The fact is that the large majority of welders are still male while most seamstresses are female; nevertheless, employers are required to open their job competition to members of both sexes.

For the most part, gender-specific language is disappearing from job descriptions. For example, words like serviceman or policeman have been replaced with service technician or police officer. One exception is the word journeyman; in Alberta under the Apprenticeship and Industry Training Act, this word is considered to apply to both men and women. Advertisements asking for a journeyman electrician, for example, aren't considered discriminatory; members of either sex can apply.

Applications Forms and Job Interviews

Like advertisements, job-application forms must be designed so as not to screen out applicants on any basis other than their ability to do the work. Questions aren't allowed on application forms that would elicit, either directly or indirectly, information about an applicant's religion, age, ethnicity, and so on.

More leeway is permitted in job interviews than on employment-application forms. Questions concerning certain prohibited grounds of discrimination that aren't allowed on application forms may sometimes be asked by employers at job interviews, but only in specific circumstances and if the nature of the job to be done warrants them.

In these cases, an employer must be able to show that the questions were asked because they pertain to genuine and reasonable qualifications for the job concerned. For example, for the public good a day-care operator might be allowed to inquire about past criminal offences of a job applicant; and someone hiring a bus driver would be justified in asking at the interview stage about a candidate's driving record.

When an employer rejects a candidate for a job, claiming that a factor like age, sex, record of offences, or a physical characteristic is a genuine and reasonable qualification because of the nature of the employment, it still must be shown that every reasonable effort was made to accommodate the candidate without undue hardship to the employer.

For example, if a physically disabled person was rejected simply because the owner didn't want to make some simple and inexpensive modification to the way things were done, the candidate might have grounds for a complaint. Employers, you'll recall, have a duty to accommodate. In assessing undue hardship, courts give consideration to factors like cost, outside sources of funding, and any health and safety requirements.

Duty to accommodate: the legal requirement of an employer to take reasonable steps to accommodate the needs of employees or potential employees so as not to discriminate unfairly against certain groups.

Medical Inquiries

Employers aren't allowed to require job applicants to undergo a medical examination as part of the application process. Employment-related medicals can be conducted only after a written offer of employment has been made. What's more, the medical has to be restricted to determining whether the applicant is physically capable of performing the essential duties of the job.

Employers can offer jobs on the condition that applicants later pass a medical; but if an applicant subsequently fails that medical, the employer has to make reasonable efforts to accommodate him or her; the duty to accommodate extends to all parts of the employer/employee relationship. If a simple, inexpensive alteration to the way things are done will allow the employee to perform the job's duties, the employer will be expected to make it.

Affirmative-Action Programs

Have you ever heard of affirmative-action programs or policies? Broadly speaking, these are policies businesses can adopt whereby they try to give preference in hiring to minority groups who are under-represented in that area of work and considered disadvantaged in getting jobs within it. As you've seen, questions on job applications concerning things like gender, race, and so on are normally forbidden; however, if these questions are asked as part of an affirmative-action program, such questions are sometimes allowed. Such a question might be phrased like the following one:

Andruchow & Associates has an affirmative-action policy in place whereby candidates from the following groups will be given preference over others if qualifications are similar. Do you wish to be considered in one or more of the following categories?

• Female
• Aboriginal
• Physically disabled
• Member of an ethnic minority

Affirmative-action program: a program offered by an employer, a learning institution, or some other body designed to increase the number of people in the organization belonging to specific groups where traditionally those groups have been underrepresented and considered disadvantaged.