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Employers must avoid discrimination during their hiring process

By Dayna M. Seinfeld, Fillmore Riley LLP

It is often said that human rights law sets out a “minimum floor” of rights and obligations that becomes part of every employment relationship. This minimum floor does not depend on the existence of an employment agreement. Rather, these rights and obligations are engaged at the hiring stage, from the time an employment advertisement is posted or a pre-hiring process is started. Every employer needs to be aware of what their human rights obligations are each time they embark on the process of hiring a new employee.

Discrimination in hiring
There is human rights legislation in each province, as well as federal human rights legislation that applies to federally regulated employers. One aspect of human rights legislation is a prohibition against discrimination in employment.

Under human rights legislation, discrimination includes differential treatment on the basis of specific protected characteristics, such as race; national or ethnic origin; religion or creed; age; sex, including sex-determined characteristics such as pregnancy; sexual orientation; marital or family status; and physical or mental disability. This means that employees cannot be treated differently or be disadvantaged in employment on the basis of any of these characteristics.

The prohibition against discrimination in employment applies to all aspects of the employment relationship, including the hiring stage. This is because human rights law aims to promote integration and inclusion in society. Prohibiting discrimination in employment but allowing discrimination at the hiring stage could result in the denial of equal opportunities for all members of society. For this reason, applicants or potential applicants cannot be subject to differential treatment on the basis of any protected ground. Most human rights legislation includes specific prohibitions that relate to employment advertising and pre-employment inquiries or applications. For example, it would be a human rights violation to publish an advertisement for a job opportunity that states that only heterosexual individuals will be considered for the job.

Bona fide occupational requirements
There are, however, circumstances where differential treatment in hiring is acceptable. For example, despite the prohibition against discrimination on the basis of physical disability, for a job involving driving a truck, it may be necessary to exclude from consideration from hiring applicants who are visually impaired. A “bona fide occupational requirement” (BFOR) is that the driver of the truck be able to safely drive. Human rights legislation recognizes that there may be limitations or preferences in hiring based on BFORs – those requirements that are necessary to ensure the proper and safe performance of the essential aspects of the job.

To constitute a BFOR, the requirement must be for a purpose or goal that is rationally connected to the functions of the position, be adopted in good faith and be necessary to accomplish the purpose or goal. To establish that a limitation or preference in hiring is a BFOR, it must be the case that it is not possible to accommodate persons with the characteristics of a particular group by shifting, modifying or altering the job duties, tasks and/or requirements. This can require challenging our assumptions about the duties of a job and who may be best suited to perform those duties.

For example, in the Supreme Court of Canada decision in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3, the government had established minimum physical fitness standards for forest firefighters in the province, including an aerobic standard. The aerobic standard was set at a level that most women were not able to meet due to physiological differences between women and men. The government was not able to establish that the particular aerobic standard was necessary to ensure that the job of forest firefighter would be performed safely and efficiently, or that it would experience undue hardship if a different standard was used. The standard was therefore discriminatory on the basis of sex as it was not a BFOR.

Questions for employers when preparing to hire
Before embarking on a new hiring process, employers should consider how to meet their human rights obligations in hiring. Considering the following questions may be helpful:

  1. What tasks and duties are genuinely required in this position?
  2. Are we directly or indirectly limiting persons with the characteristics of a protected group from this position?
  3. If there is a standard that has been set for the position, is that standard truly necessary for performance of the essential elements of the job?
  4. Is there a way to provide accommodation in this position so that the essential duties can still be performed by persons with the characteristics of a protected group?

Consulting a lawyer when preparing to start a hiring process can help to ensure that you are not running afoul of your obligations under human rights law.

Dayna M. Steinfeld practises primarily in the areas of regulatory and administrative law, employment law and civil litigation. You may reach her at 204-957-8321 or This email address is being protected from spambots. You need JavaScript enabled to view it.

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