A word of caution for employers: human rights in the hiring process

10 décembre 2019 | Shannon M. Houston, Teri Treiber, Hodson Harding

( Disponible en anglais seulement )

While many employers understand that it is illegal to discriminate against current employees on the basis of grounds protected by human rights legislation, it is also important to note that applicants are afforded the same protections.

A recent decision by the Human Rights Tribunal of Ontario (“HRTO”) in Haseeb v Imperial Oil Limited[1] found that an employer that imposed requirements on job applicants to be able to permanently work in Canada violated the Ontario Human Rights Code (the “Code”). The HRTO determined that Imperial Oil Limited (“Imperial Oil”) discriminated against Mr. Haseeb based upon his citizenship, one of the prohibited grounds of discrimination under the Code.

Mr. Haseeb was a McGill University international student who, while completing his engineering degree, applied for an entry-level engineering position at Imperial Oil during his final semester. He was in Canada on a study permit and would become eligible for an open Post-Graduate Work Permit (“PGWP”) upon graduation. The PGWP would allow Mr. Haseeb to work full-time for any Canadian employer for a period of three years after graduation. He anticipated that he would be able to apply for, and be granted, permanent residency pursuant to one of the Federal permanent resident programs within that three year period.

At the time of Mr. Haseeb’s application, Imperial Oil had a policy that required all entry-level engineering candidates to be eligible to work in Canada on a permanent basis. During the application process, Mr. Haseeb was asked a handful of times whether he was eligible to work in Canada on a permanent basis, and he repeatedly answered “yes.” He was eventually successful in the multi-step selection process and was offered a job as the top candidate. The offer was conditional upon providing documentary proof of citizenship or permanent residency. As a result of Mr. Haseeb not being able to provide such proof, the offer was withdrawn.

At the hearing, Mr. Haseeb testified that he was dishonest about his work eligibility status because he was aware of Imperial Oil’s policy requiring applicants to either be citizens or Canadian permanent residents and, as a result, he feared that answering that specific question truthfully would exclude him from employment with Imperial Oil. Upon hearing the evidence, the HRTO determined that Imperial Oil’s policy was discriminatory for requiring applicants to be authorized to work permanently in Canada.  The HRTO held that Imperial Oil had not shown that this requirement was a bona fide occupational requirement. Accordingly, the policy discriminated against prospective employees with temporary work permits (and therefore lawfully able to work in Canada) on the basis of citizenship.

While Imperial Oil argued that the job offer was rescinded because of Mr. Haseeb’s dishonesty, the HRTO rejected this argument because it was not convinced that, had Mr. Haseeb been honest, he would have been hired. Instead, the HRTO felt the contrary was more likely true – that, if Mr. Haseeb had been honest, he would have been considered ineligible for the position.  The HRTO determined that Mr. Haseeb’s dishonesty had to be viewed in context – he misrepresented his permanent status eligibility to circumvent being characterized as ineligible for the position prior to his abilities and experience being evaluated.

It was also found that Mr. Haseeb’s dishonesty was irrelevant in deciding whether the Code had been breached. In its reasoning, the HRTO determined that Mr. Haseeb would not have been dishonest if not for Imperial Oil’s discriminatory questions about his eligibility to permanently work in Canada.

Mr. Haseeb was awarded damages of $120,360.70 for four years of lost wages; injury to his dignity, feelings and self-respect; and, interest. No public interest remedies were ordered because Imperial Oil had already made changes to their recruitment processes, with the modifications reflected on their website, job postings, candidate application questionnaire, interview guides, offer letters and pre-employment communications. The main change to Imperial Oil’s policy was that it no longer requires applicants to provide proof of eligibility to work in Canada on a permanent basis, but rather only requires proof of eligibility to work in Canada for Imperial Oil.

Takeaway for Employers

It is necessary and prudent for employers to ensure that all employees are legally entitled to work in Canada.  However, this HRTO decision has made it clear that requiring proof of an employee’s permanent eligibility to work in Canada is unacceptable. Hiring decisions cannot be made based on an applicant’s permanent eligibility to work in Canada, and should be based on the applicant’s current legal ability to work in Canada for that specific employer.

As has been the case for many years, employers must take appropriate steps to establish a discrimination-free hiring process. Employers must review their hiring practices regularly to ensure a fair process for all candidates. In general, employers should avoid asking questions of applicants, and/or placing barriers upon their employment, that are based on grounds protected by human rights legislation (unless it can be proven that discrimination is justified as a bona fide occupational requirement).

For more details on what you can and cannot ask job applicants during the hiring process, or about the conditions that can be placed upon employment, please speak to one of our employment experts.  For immigration questions, please contact one of our immigration experts.

[1] 2018 HRTO 957; 2019 HRTO 1174.

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