Recruitment and Selection Techniques Legislation

Legislation
Introduction
In this module, we will be learning about several pieces of the legislation related to recruitment
and selection.

Learning Outcomes
By the end of this module, you will be able to:

• Examine legislation related to recruitment and selection in Canada

• Compare concepts of direct discrimination, adverse effect discrimination and adverse
impact
• Explain bona fide occupational requirement and its application in the workplace
• Explain how to avoid discriminatory practices in the workplace when recruiting and
selecting staff

Canadian Charter of Rights and Freedoms

Click here to explore the website to learn more about Canadian Charter of Rights and Freedoms

The Employment Equity Act

Take some time to explore the Justice Laws Website to learn about the Employment Equity Act
and answer the following question. Click here to visit website.

The Employment Equity Act

A new Employment Equity Act was proclaimed in 1996 and has nine key elements:

1. Coverage

A total of 350 private sector employers and Crown corporations are covered by the Act.
These employers operate in federally-regulated industries such as:
• banking
• communications and inter-provincial and international transportation
• federal departments and agencies
• separate federal employers with 100 or more employees.

2. Designated Group Members

Four designated groups:

• women
Recruitment and Selection Techniques Legislation

• aboriginal peoples
• members of visible minorities
• persons with disabilities.

Under the Employment Equity Act (1995), the federal public service, Crown
corporations and federally-regulated private sector employers with 100 or more
employees must examine their workforces to determine whether any of the four
groups is under-represented, taking into consideration factors such as qualifications,
location and industry.

Each employer prepares an annual statistical report available to the public. In addition,
employers must identify and remove barriers to the employment of members of the four
groups and establish goals for improving their representation.

Employees must self-identify in order to be considered as a member of a designated

group.

3. Employer Equity Act

Employers covered by the Act have an obligation to implement employment equity.

An employer's responsibility to the designated groups are:

• identifying and eliminating barriers to employment
• instituting positive policies and practices
• ensuring reasonable accommodations.

Purpose of obligation:
Ensure that the representation of persons in the designated groups in the employer's
workforce reflects their presence either in the Canadian workforce, or in segments of the
workforce that the employer would reasonably draw upon for staffing purposes.

A 'segment of the workforce' might be defined by criteria such as qualification, eligibility

or geographical location.

These are some other reasons required by employer to meet obligations:

1. Conduct an analysis of its workforce to ascertain representation. Only those

employees who self-identify can be counted. Data for women as a designated
group may come from gender information collected for other purposes.
2. Review employment systems, policies and practices to identify and eliminate
barriers against designated groups.
3. Undertake policies and programs to correct under-representation and provide
for reasonable accommodation of differences in the workplace.io
4. Prepare a plan with qualitative and numerical goals as well as activities and
timetables for achieving them.
5. Inform employees of the purposes of employment equity, the key measures
for implementing employment equity and progress achieved.
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6. Consult with its employees' representatives on implementing employment

equity and communicating to employees on related matters. There is also a
duty on both parties to consult and collaborate on developing the employment
equity plan as well as implementing and revising it.

Employer Obligations

If you are covered by the Federal Contractors Program, you also have the responsibility to
develop and implement employment equity plans and programs, even if you are a private
sector employer.

In both the public and private sector, this does not mean quotas but the requirement is to
work towards targets.

4. Bargaining Agents/Employee Representatives

As an employer under the Act, you have a requirement to work with your union in the
preparing, implementing and revising employment equity plans. At the same, the Act
recognizes that this is not co-management. Management still has the right to manage.

Items such as seniority rights, priorities and workforce reduction measures are not to be
considered employment barriers under the Act. At the same time, if these provisions
may have an adverse impact on designated group members, management and the
union have a responsibility to find ways to minimize the impact.

5. Enforcement

The Canadian Human Rights Commission (CHRC) has the right to conduct on-site
compliance reviews in order to verify and gain compliance. It is also responsible for
Review Tribunals, which are empowered to hear disputes and issue orders.

6. Federal Contractors Program

The Minister of Labour administers the Federal Contractors Program. Every business
doing $1 million (in 2013) of business with the federal government must implement an
Employment Equity Program.

7. Administration of the Act

The Minister of Labour:

• Conducts research
• Provides labour market data
• Conducts public education programs
• Recognizes outstanding achievement in employment equity
• Carries out other activities to further the goals of the Act

8. Mandatory Review

The Employment Equity Act must be reviewed every five years.

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9. Broadcasting Act, Constitional Amendment

The new Act eliminates double regulation of employers subject to both the Employment
Equity Act and the Broadcasting Act (CRTC).

Canadian Human Rights Act

The Canadian Human Rights Act states:

“Every individual should have an equal opportunity with other individuals to make for
himself or herself the life that he or she is able and wishes to have, consistent with his or her
duties and obligations as a member of society.”

Human Rights legislation is found in all provinces in Canada, and at the federal level. Let us
start by discussing the federal act.

Click here to learn more about the Ontario Human Rights Commission.

Canadian Human Rights Act con’t.

Human Rights and discrimination are important legal concepts in the context of Recruitment &
Selection. Both our textbook and course material provide in-depth information on these concepts and
their impact on our course content. Important recent developments have not yet been reflected in our
textbook and course material and I'd like to draw your attention to these new aspects of our Human
Rights legislation.

In 2017 Bill C-16 was passed. Bill C-16 is “An Act to amend the Canadian Human Rights Act and the
Criminal Code”. The amendments added gender identity and gender expression to the list of prohibited
grounds of discrimination in the Canadian Human Rights Act [Subsection 3(1), Prohibited grounds of
discrimination]. In addition, they also amended the Criminal Code to extend the protection against “hate
propaganda” to any segment of the public that is distinguished by gender identity or expression.

Please visit the following links for more information:

• Canadian Human Rights Code

• Bill C-16

Ontario also updated its Human Rights Code to include gender identity and gender expression as
prohibited grounds of discrimination some time ago. For additional information on the Ontario Human
Rights Code, please visit the Ontario Human Rights Commission Strategic Plan 2017 – 2022. To learn
more about how to apply relevant sections of the Code in the context of Human Resources
Management Recruitment & Selection, please visit the Ontario Human Rights Commission and read
their document titled "Policy on preventing discrimination because of gender identity and gender
expression 2014.”
Recruitment and Selection Techniques Legislation

Should you have any questions about the impact of the inclusion of gender identity and gender
expression on the Recruitment & Selection process, please don't hesitate to ask on the Discussion
Board.

What is Discrimination?
Discrimination means treating people differently, negatively, or adversely without a good reason.

Discrimination means making a distinction between certain individuals or groups based on a

prohibited ground.

Examples of discrimination:
• A job advertisement or a public notice says “no women need apply” or “foreigners not
allowed”
• People are called insulting names because of their colour, age, or some physical or
mental disability.
• When someone does not get the service they want or the job they think they deserve.

What is Discrimination? Cont.

Remember, discrimination can be much more subtle, and harder to stop. Sometimes, the only
way to tell whether there is discrimination is by looking at the effects on groups of people.

Example #1: if people who use wheelchairs cannot get near the service counter, then it is
obvious that they are not being well served.

Example#2: If people over 40 are almost never hired for a particular job, we can ask whether
there is a good reason for this, or whether it is just someone’s prejudice against older workers.

Prohibited Grounds
Under the Canadian Human Rights Act, it is against the law for any employer or provider of
service that falls within federal jurisdiction to make unlawful distinctions based on the following
prohibited grounds:
• race
• national or ethnic origin
• colour
• religion
• age
• sex (including pregnancy and childbirth)
• marital status
• family status
• mental or physical disability (including previous or present drug or alcohol dependence
Recruitment and Selection Techniques Legislation

• pardoned conviction
• sexual orientation

Who is covered by the CHRA?

Here are employers and service providers who are and are not covered by the Canadian
Human Rights Act.
• Canada Post
• National Airlines
• Chartered banks
• Federal departments, agencies, and Crown corporations
• Interprovincial transportation companies
• Other federally regulated industries such as mining operations

Note: All provinces and territories have similar laws forbidding discrimination in their areas of
jurisdiction. In Ontario, it is the Ontario Human Rights Code.

Who is covered by the CHRA? Cont.

The Canadian Human Rights Act provides for exceptions such as:

Bona fide Occupational Requirement

A job may be refused to a person who cannot perform it safely, efficiently and reliably, or there
is a legitimate health and safety concern. For example, an airline pilot can be refused
employment if they have eyesight that cannot be corrected by lenses.

Bona fide Justification

A service may be refused to a person when it cannot be offered without undue costs.

Equal Pay Guidelines

A difference in wages between men and women performing work of equal value in an
establishment may be justified by different performance ratings, seniority, red-circling, training
and rehabilitation assignments, internal labour shortages and surpluses and regional wage
rates. These items are not related to sex.

Maternity and Child Care

An employer can grant workers special leave or benefits in connection with pregnancy or
childbirth, or for the care of their children.

Mandatory Retirement
Recruitment and Selection Techniques Legislation

A worker can be retired at the age that is "normal" for the kind of work involved. Federal
firefighters, for example, may be required to retire at age 65 due to the physical requirements of
the job. So, even though federal legislation has no upper limit in terms of age, there may be
positions where you would not recruit persons who are over the normal retirement age. In all
other instances, you may sometimes discriminate on the basis of age.

Special Programs
The Canadian Human Rights Act, like the Canadian Charter of Rights and Freedoms, makes
provisions for special programs designed to end long-standing disadvantages and prevent them
from happening again.
A special program can be something as simple as a training program for workers from a
disadvantaged group or a comprehensive employment equity plan. This means that you can
choose to hire only women if women have traditionally been disadvantaged in your hiring
practices. You will recall that Ryerson did this a number of years back in the recruitment of
professors.

Accessibility
The Canadian Human Rights Act recognizes that persons with disabilities must have access to
premises, services and facilities. This means that you must also make your premises accessible
for your staff.

The Canadian Human Rights Commission

The Canadian Human Rights Commission administers the Canadian Human Rights Act and
ensures that the principles of equal opportunity and non-discrimination are followed in all areas
of federal jurisdiction.

To put it simply, the Commission's business is to make the Act work for the benefit of all
Canadians.

The provincial Human Rights legislation for Ontario is the Ontario Human Rights Code.

Ontario Human Rights Code

Click here to view the Ontario Human Rights Commission website and think about the following
question.

The Ontario Human Rights Code protects people from discrimination, intentional or otherwise,
on what grounds?

The Ontario Human Rights Code protects people from discrimination, intentional or otherwise,
on the following grounds:
• race
• ancestry
• place of origin
Recruitment and Selection Techniques Legislation

• colour
• ethic origin
• citizenship
• creed
• sex
• sexual orientation
• age (18 - 65)
• marital status
• family status
• handicap (disability)

Ontario Human Rights Code

In terms of employment, there are various clauses that directly relate to recruitment and
selection. These include the following sections of the act:
• Section 5 (1)
• Section 11 (1)
• Section 11 (2)
• Section 14 (1)
• Section 16

Click here to visit the Human Rights Code and navigate to the sections above.

Ontario Human Rights Code cont.

The Commission has four basic goals:

1. To prevent discrimination through public education and the development of public policy.
2. To investigate complaints of discrimination and harassment.
3. To try to conciliate between the parties in complaints and help them to reach a
settlement.
4. To look into situations where subtle or indirect discrimination may exist.

Knowledge Check
The following questions provide an opportunity for you to see what you remember and understand so
far. Answer the questions to the best of your ability.

1. "Treatment that brings about an equality of results and that may, in some instances, require
different treatment" is:
a. Equal treatment
b. Reasonable alternative
c. Adverse impact
d. Bona fide occupational requirement (BFOR)
2. Bona Fide Occupational Requirement (BFOR) means:
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a. The employer must show that no reasonable or practical substitute exists for the
discriminatory practice.
b. Requirements sincerely believed necessary for the job (established in good faith), and in
an objective sense, reasonably necessary to assure the safe, efficient and economical
performance of the job.
c. Occurs when the selection rate for a protected group is lower than that for the relevant
comparison group. The relevant comparison group usually has the highest selection
rate.
3. Requirements sincerely believed necessary for the job (established in good faith), and in an
objective sense, reasonably necessary to assure the safe, efficient and economical performance
of the job.
a. Adverse impact
b. Direct discrimination
c. Adverse effect discrimination
d. Sufficient risk

Answers:

1. A – Equal treatment
2. B – Requirements sincerely believed necessary for the job (established in good faith), and in an
objective sense, reasonably necessary to assure the safe, efficient and economical performance
of the job.
3. Adverse effect discrimination

Definitions
Equal Treatment:
"Treatment that brings about an equality of results and that may, in some instances, require
different treatment"

Bona Fide Occupational Requirement (BFOR):

Requirements sincerely believed necessary for the job (established in good faith), and in an
objective sense, reasonably necessary to assure the safe, efficient and economical
performance of the job.

Adverse effect discrimination:

"Discrimination which arises when an employer adopts a rule or standard which appears to be
neutral, and applies equally to all, but which has a discriminatory effect on a particular group
protected by the Code. It is discriminatory in that it imposes, because of some special
characteristic of that group, obligations, penalties or restrictive conditions not imposed on other
members of society"

Direct Discrimination:
Refers to an act of discrimination which is overt.
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For example: A refusal to provide service to someone based upon his or her membership in one
of the protected groups would be direct discrimination.

Adverse Impact:
Occurs when the selection rate for a protected group is lower than that for the relevant
comparison group.

The relevant comparison group usually has the highest selection rate.

Reasonable Accommodation:
An employer is required to take reasonable steps to accommodate the complainant or it would
be undue hardship to do so, or it interferes with a collective agreement.

Individual Accommodation:

Individual accommodation states that it is not reasonable to apply the lack of accommodation to
all employees in that group; that the decision must be an individual decision.

Reasonable Alternative:

The employer must show that no reasonable or practical substitute exists for the discriminatory
practice.

Sufficient Risk:

Sufficient risk relates to bona fide occupational requirements.

If there is sufficient risk in the work to justify the discrimination, this may be a BFOR, e.g. a blind
truck driver.

Summary
In this module, you were introduced to legislation relating to recruitment and selection in
Canada.

You should be able to compare the concepts of direct discrimination, and adverse effect
discrimination and adverse impact.

You should also be able to explain the bona fide occupational requirement, its application in the
workplace and how to avoid discriminatory practices in the workplace when recruiting and
selecting staff.