What do Human
Rights have to do with Hiring Right? In Canada, the two go hand in
hand. Whether you are a job seeker looking for that dream job, or
an employer searching for the ideal candidate, you should know
that Canada's human rights legal framework affects all aspects of
the employment relationship, starting with the employment
interview. Here are a few tips on incorporating human rights laws
into the interviewing process.
What is the Human Rights Legal Framework?
The foundation of
human rights law in Canada is found in Section 15 of the Canadian
Charter of Rights and Freedoms. It states that all Canadians have
the right to equality of opportunity and equality of outcome
without discrimination in the spheres of employment, provision of
goods and services, and housing.
In simple terms,
this means that an employer has to be open to hiring any
individual that possesses the genuine qualifications for the job -
the fact that the applicant is a man or a woman, married or
single, a member of a visible minority or disabled should not
automatically disqualify that person from being considered and
hired.
In B.C. the
legislation that deals with discrimination is the BC Human Rights
Code. You can access the code at www.bchrt.bc.ca/human_rights_code/default.htm.
Whether you are an employer or a job seeker, you should
familiarize yourself with this important piece of legislation.
What is Discrimination in Employment?
Discrimination
occurs when individuals are excluded, or prevented, from
participating in activities or opportunities which they have a
legal right to participate in. At work this might mean that
someone is denied work or promotion or is treated unfairly because
of their age, sex, the colour or their skin, or where they came
from. The intention of human rights law is to ensure that only
job-related considerations such as ability, merit and
responsibility are used to evaluate applicants and employees.
Age, sex, race and
disability are some of the personal characteristics that are
referred to in human rights law as the prohibited grounds of
discrimination. Each federal or provincial Human Rights Code or
Act contains a specific list of prohibited grounds. In BC the
prohibited grounds of discrimination in employment are race,
colour, ancestry, place of origin, religion, marital status,
family status, physical or mental disability, sex, sexual
orientation, age, or unrelated criminal or summary conviction.
The law requires an
employer to create and maintain a work environment which is free
from discrimination and harassment. An employer is required by law
to run his/her business in a way that provides equal access to
jobs and other opportunities for all employees and to treat
everyone in a non-discriminatory manner.
How To Avoid
Discrimination in Recruitment?
If you are an
employer, make sure you have a written job description for each
position before you start your interviewing process. Structure
this description on the basis of the "bona fide" or
genuine requirements of the job. For example, if a position
requires traveling, shift work or extended work hours, heavy
lifting or other physical requirements, permits or licenses,
specific educational qualifications or skills, include these facts
in your job description.
The advantage of
having a written job description is that you can use it as a guide
when preparing advertisement and interview questions, and it will
ensure that prospective candidates know exactly what the job
entails. Human rights laws require that you do not discriminate,
however, you have the right to hire the most suitable candidate
for the position which you are filling. What is important from a
human rights perspective is that you can defend whatever decisions
you make on the basis of the genuine job requirements and the
qualifications of the individuals that apply for the position.
Once you have
prepared your job description, use it to guide you in writing your
job advertisement and in preparing your interview questions. It is
always preferable to have a set of written questions which you ask
each candidate in an interview. This ensures that each individual
who is interviewed is asked the same things and reduces the
appearance of arbitrary or discriminatory treatment in the
interviewing process. Of course, you should take notes of each
candidate's answers and keep those on file in the odd chance that
an unsuccessful candidate decides to file a human rights
complaint.
The same principles
apply when interviewing individuals for internal promotions,
transfers, or in disciplinary situations or performance
appraisals. Stick to a set of prepared questions that are related
to the specific issue at hand.
What Questions Can an Employer ask in a Job Interview?
If you are a
looking for work, you should ensure that you know what your rights
are in an employment interview. Fundamentally, a prospective
employer may ask you any questions which will help them make a
decision as to whether or not you are qualified for the position
you are applying for. However, an employer that knows the law
should not be asking you questions that relate to your race,
gender, nationality, religion or other grounds which are protected
in law (please refer to the list provided above). Bring whatever
documentation you may need to show that you possess the
qualifications that have been advertised as being required for the
position.
You should be
prepared to answer any question that is directly associated with
the genuine requirements of a job.
An employer may ask
a candidate, "Are you within the age range of BC's legal
working age?" (19-64), but should not ask his/her age or
birth date.
An employer may ask
if someone is legally entitled to work in Canada, but should not
ask an individual where he/she comes from.
An employer may ask
an individual if he/she is available for shift work or work on the
weekend if that is part of the job requirements, but should not
ask an individual about his/her religious practices or whether or
not the individual has a family. (E.g. Ask "Are you
available to work on Sunday" rather than "Do you go to
church" or "Are you available for shift work"
rather than "Are you married" and/ or " Do you
have a family")
Similarly, if a
position requires travel, an employer should ask an individual if
he/she is available to travel and work evenings, rather than
asking if he/she is married, has children, or is pregnant.
If an employer
wants details about an individual's work history, the focus should
be on the actual job experience, and on what the individual was
doing, rather than the country in which the work experience took
place.
An employer may ask
an individual to provide any documentation relative to educational
qualifications that are required to verify qualifications. It is
the responsibility of the employer to ascertain whether or not the
educational certificate is equivalent to the Canadian standard,
based upon publicized standards.
It is a good
business practice in an employment interview for an employer to
ask a prospective candidate a question such as "Is there
anything which may prevent you from being able to fulfill all the
job requirements as they have been explained to you." This is
important because if the individual tells you that she/he is are
pregnant, or has a disability, or a religious practice that will
interfere with her/his ability to fulfill all the job
requirements, the obligation for employer to accommodate that
prospective employee kicks in.
Human rights law
requires employers to accommodate individuals that share a
characteristic that is protected in human rights law. The law
requires employers to accommodate disability, and other protected
characteristics like race, religion and gender, to the point of
undue hardship. This means that if you apply for a job and are
pregnant, an employer cannot use that fact to disqualify you from
the job. If you are the best candidate for the job, the employer
should hire you, and then "accommodate" you as is
necessary. This may mean that your employer will have to adjust
some of your job tasks if your pregnancy interferes with your
ability to safely perform that task. It also means that you will
be able to take maternity leave when your child is born and know
that your employer must hold your job for you until you are ready
to come back to work.
If you are asked
this type of question in a job interview you should be truthful
about any issues within the prohibited grounds of discrimination
in law that may interfere with your ability to do the job as
described, even if you are worried that the disclosure may affect
your chances to get the job. If you fail to do this, then accept
the job and tell your new employer afterwards, your employer may
believe that you are not trustworthy, and may decide to dismiss
you for that reason.
So What Should I Do?
If you are going to
be looking for employment in BC, you should take some time to
familiarize yourself with the law so that you understand your
rights. You should be aware of what an employer should and should
not ask you in a job interview. You should figure out ahead of
time what you will say or do if a potentially discriminatory
question is asked in a job interview, and then you should think
about whether or not you will want to work in a company that may,
knowingly or unknowingly, condone discriminatory practices. Think
about the kind of work environment that you will feel comfortable
in, and use the employment interview as a source of information
for you to help you decide if this position is the right one for
you.
If you are an
employer, you should also take the time to familiarize yourself
with the law so that you understand your human rights obligations.
In today's tight labour market, you need to position your business
so that you can attract and retain the best and the brightest that
the market offers. Incorporating good human rights practices in
all aspects of the employment relationship, from the hiring
interview onwards, makes good business sense.
About The Author:
Erica
Pinsky is a creative, dynamic, results oriented consultant whose
passion is promoting human dignity in the workplace through
respectful workplace practices. Erica has worked with a myriad of
organizations to assist them in successfully managing the complex
issues of discrimination, harassment, bullying and conflict in the
workplace.
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