© 2013 by Nelson Education1 Chapter 3 Foundations of Recruitment and Selection II: Legal Issues

The Big Questions(s) What are the legal requirements HR professionals need to recognize? What are the advantages and disadvantages of the different types of legislation affecting recruitment and selection? © 2013 by Nelson Education2

3 Four Legal Sources Affecting Canadian Employment Practices 1. Constitutional law 2. Human rights legislation 3. Employment equity 4. Labour law, employment standards, and related legislation (See Notebook 3.1 text p. 69) (We can also include Occupational Health and Safety and Workplace Safety and Insurance standards)

© 2013 by Nelson Education4 Constitutional Law  Constitutional law: the Supreme Law of Canada ◦ Has a pervasive impact on employment practices, as it does on all spheres of Canadian Society

© 2013 by Nelson Education5 Constitutional Law (continued) ◦ NB: Section 15, subsection 1 of the Canadian Charter of Rights and Freedoms: every individual is equal before and under the law and has the right to the equal protection and equal benefits of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

© 2013 by Nelson Education6 Constitutional Law (cont) ◦ NB Also: Section 15, subsection 2 of the Canadian Charter of Rights and Freedoms: Subsection 1 does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

© 2013 by Nelson Education7 Common Example of Subsection 2 ◦ Ryerson University is strongly committed to fostering diversity within our community. We welcome those who would contribute to the further diversification of our staff, our faculty and its scholarship including, but not limited to, women, visible minorities, Aboriginal people, persons with disabilities, and persons of any sexual orientation or gender identity. Please note that all qualified candidates are encouraged to apply but applications from Canadians and permanent residents will be given priority.

© 2013 by Nelson Education8  Human rights legislation: prohibits discrimination in both employment and the provision of goods and services (e.g., rental housing, service in restaurants) ◦ Legislation generally establishes human rights commissions or tribunals to deal with complaints, including those involving employment discrimination Human Rights Law

© 2013 by Nelson Education9  Section 8 of the Canadian Human Rights Act refers to a “a prohibited ground of discrimination.”  The following are the 16 grounds on which discrimination is prohibited: ◦ Race, ancestry, place of origin, colour, ethnic origin, citizenship, creed (religion), sex (including pregnancy and childbirth), sexual orientation, mental or physical disability, perceived disability, age, marital status, family status, same-sex partnership status, pardoned conviction (record of offences) Human Rights Law

© 2013 by Nelson Education10

© 2013 by Nelson Education11 Prohibited Grounds of Employment Discrimination (cont)

© 2013 by Nelson Education12 Prohibited Grounds of Employment Discrimination (cont)

© 2013 by Nelson Education13 Prohibited Grounds of Employment Discrimination (cont)

© 2013 by Nelson Education14 Prohibited Grounds of Employment Discrimination (cont)

© 2013 by Nelson Education15 Prohibited Grounds of Employment Discrimination (cont)

© 2013 by Nelson Education16  Employment equity: the elimination of discriminatory practices that prevent the entry or retention of members from designated groups in the workplace, and the elimination of unequal treatment in the workplace related to membership in a designated group (e.g., women, visible minorities, Aboriginal peoples, and people with disabilities) Employment Equity Legislation

Employment Equity Legislation (cont)  Federal legislation requires Employment Equity programs: 1. For all federally regulated employers with 100 or more employees, including banking, communications, inter-province and international transport, and all government departments © 2013 by Nelson Education17

Employment Equity Legislation (cont) 2. Federal Contractors Program requires any organization with more than 10 employees that does more than $200,000 of business with the federal government © 2013 by Nelson Education18

Employment Equity Legislation (cont)  Of the provinces only BC has enacted a complementary program  Only Quebec has enforced this in the private sector  In Ontario EE is reliant on organizations size and status © 2013 by Nelson Education19

© 2013 by Nelson Education20 1. Obtain support of senior management for the EE effort 2. Conduct a survey to determine the present representation of designated groups in the organization’s internal work force 3. Set future representation targets for designated groups based on availability of qualified workers in the labour market Developing and Implementing and Employment Equity (EE) Plan

© 2013 by Nelson Education21 4. Remove systemic employment barriers to increase representation for designated groups in the internal work force 5. Monitor the changing composition of the internal work force over time 6. Make necessary changes to the EE intervention to bring designated group representation up to future targets Developing and Implementing and Employment Equity (EE) Plan (cont)

© 2013 by Nelson Education22  A work force representative of Canadian culture and diversity  An increase in global competitiveness and productivity  High employee morale and decreased absenteeism Benefits of Implementing Employment Equity - s ee Notebook 3.3, text p. 77

© 2013 by Nelson Education23  Amicable relationships with customers and clients  Enhanced corporate reputation – being a solid corporate citizen  Increased profitability and a better bottom line Benefits of Implementing Employment Equity (cont)

© 2013 by Nelson Education24 1. You are the President of your company. How would you encourage your managers to promote Employment Equity in their department? 2. What key areas of the recruitment and selection process would you focus upon in order to ensure equity and diversity? Class Activity

© 2013 by Nelson Education25  Federal/Provincial labour laws: stipulate the rights of the employees to organize trade unions and to bargain collective agreements with employers  Collective agreements: set out the conditions for unionized employees (e.g., Promotion, lateral transfer and demotion) Labour Law

© 2013 by Nelson Education26  Employment standards: federal/provincial laws to regulate minimum age of employment, hours of work, minimum wages, statutory holidays, vacations, work leaves, and termination of employment Employment Standards

© 2013 by Nelson Education27 Key Legal Concepts in Recruitment and Selection  Direct discrimination: occurs where an employer adopts a practice or rule that, on its face, discriminates on a prohibited ground

© 2013 by Nelson Education28 Key Legal Concepts in Recruitment and Selection (cont)  Indirect discrimination: occurs when an employer, in good faith, adopts a policy or practice for sound economic, or business reasons, but when it is applied to all employees it has an unintended, negative impact on members of a protected group

© 2013 by Nelson Education29 Key Legal Concepts in Recruitment and Selection (cont)  Protected groups: those who have attributes that are defined as “prohibited grounds” for discrimination under the human rights act that applies to the employing organization  Adverse impact: occurs when the selection rate for a protected group is lower than that for the relevant comparison group

© 2013 by Nelson Education30  Bona fide occupational requirement (BFOR): requirement(s) that a person must possess to perform the essential components of a job in a safe, efficient, and reliable manner  An employer must show that the practice or policy was adopted in an honest and good- faith belief that it was reasonably necessary to ensure the efficient and economical performance of the job without endangering employees or the general public Key Legal Concepts in Recruitment and Selection (cont)

© 2013 by Nelson Education31  Accommodation: the duty of an employer to put in place modifications to discriminatory employment practices or procedures to meet the needs of members of a protected group being affected by the employment practice or procedure  See Notebook 3.5, text p. 92 Key Legal Concepts in Recruitment and Selection (cont)

© 2013 by Nelson Education32 Key Legal Concepts in Recruitment and Selection (cont)  Sufficient risk: an employer may argue that an occupational requirement that discriminates against a protected group is reasonably necessary to ensure that work will be performed successfully and in a manner that will not pose harm or danger to employees or the public

© 2013 by Nelson Education33  Undue hardship: the limit beyond which employers and service providers are not expected to accommodate a member of a protected group  Undue hardship usually occurs when an employer cannot bear the costs of the accommodation. Key Legal Concepts in Recruitment and Selection (cont)

© 2013 by Nelson Education34 Key Legal Concepts in Recruitment and Selection (cont)  Adverse effect discrimination: a situation where an employer, in good faith, adopts a policy or practice that has an unintended, negative impact on members of a protected group  Employment Equity: the elimination of discriminatory practices and unequal treatment related to entry, retention, and treatment

© 2013 by Nelson Education35 1. What does it mean to accommodate someone to the point of undue hardship? 2. When can an apparently discriminatory selection practice by justified on the grounds of “sufficient risk”? 3. How do you avoid asking questions that may trigger a claim of discrimination? (See Table 3.4, text pp ) Class Activity

© 2013 by Nelson Education36  Outreach recruiting: the employing organization makes a determined and persistent effort to make potential job applicants, including designated group members, aware of available positions within the employing organizations Outreach Recruiting

© 2013 by Nelson Education37  Effective Practices for Non-discriminatory Recruiting ◦ Post complete, objective, and specific information on all available jobs in a conspicuous spot ◦ Advertise job openings in media that are read, viewed, or listened to by protected or designated group members ◦ Train employment clerical staff and recruitment officers in outreach recruiting Recruitment and Selection Notebook 3.5 – text p. 98

© 2013 by Nelson Education38 Recruitment and Selection Notebook 3.5 (cont) ◦ Base selection criteria on bona fide occupational requirements ◦ Use opportunities to visually present protected or designated group members in positive employment roles ◦ Establish networks with community groups from which protected or designated group members are drawn ◦ Set and advertise objectively determined selection criteria for the job

© 2013 by Nelson Education39 Recruitment and Selection Notebook 3.5 (cont)  Ineffective Practices for Non-discriminatory Recruiting ◦ Permit receptionists and recruiters in employment offices to “pre-screen” applicants on the basis of informal criteria (e.g., appearance, dress) ◦ Rely on word-of-mouth advertising ◦ Post job advertisements only in-house

© 2013 by Nelson Education40 ◦ Rely solely on seniority when promoting employees without regard for meeting the qualifications need for the position ◦ Allow each recruiter to use and communicate idiosyncratic criteria for selecting among job applicants ◦ Categorize and stream job applicants based on stereotyped assumptions about protected or designated group membership (e.g., that women are not physically strong enough for certain work) Recruitment and Selection Notebook 3.5 (cont)

© 2013 by Nelson Education41 Summary  The work force is becoming increasingly diverse with regard to race, gender, and disabilities  It is imperative that HR professionals respect diversity, human rights, and employment equity

© 2013 by Nelson Education42  There are four main legal sources: constitutional law, human rights legislation, employment equity, and labour law and employment standards Summary (cont)

 Not only adopt proper process but ensure effective implementation and monitor and test according to a valid schedule  NB: Text p. 101 questions appropriate to establishing legal compliance  EDUCATE management through internal programs © 2013 by Nelson Education43

Summary (cont)  Remember (text p. 102): “The best defense is a selection system that meets the validity and reliability requirements outlined in chapter 2” and accords with the legislation regarding rights, employment, labour relations, and health and safety © 2013 by Nelson Education44

© 2013 by Nelson Education45 1. What are the prohibited grounds of employment discrimination in Ontario? 2. Why is relying on intuition or “gut feeling” when making hiring decisions a risky business? Discussion Questions