Human Rights in Hiring
Employers must avoid discrimination during their hiring process
By Dayna M. Steinfeld, 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.
LEGAL
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
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