Chapter 3
Foundations of Recruitment and Selection II:
Legal Issues
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The Big Questions(s)
 What
are the legal requirements
professionals need to recognize?
HR
 What
are the advantages and disadvantages
of the different types of legislation affecting
recruitment and selection?
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Four Legal Sources Affecting
Canadian Employment Practices
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)
1.
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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
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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.
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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.
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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.
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Human Rights Law

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
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Human Rights Law


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)
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Prohibited Grounds of Employment
Discrimination (cont)
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Prohibited Grounds of Employment
Discrimination (cont)
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Prohibited Grounds of Employment
Discrimination (cont)
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Prohibited Grounds of Employment
Discrimination (cont)
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Prohibited Grounds of Employment
Discrimination (cont)
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Employment Equity Legislation

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)
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Employment Equity Legislation
(cont)

1.
Federal legislation
Equity programs:
requires
Employment
For all federally regulated employers with
100 or more employees, including
banking, communications, inter-province
and international transport, and all
government departments
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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
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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
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Developing and Implementing and
Employment Equity (EE) Plan
1.
2.
3.
Obtain support of senior management for
the EE effort
Conduct a survey to determine the present
representation of designated groups in the
organization’s internal work force
Set future representation targets for
designated groups based on availability of
qualified workers in the labour market
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Developing and Implementing and
Employment Equity (EE) Plan (cont)
4.
5.
6.
Remove systemic employment barriers to
increase representation for designated
groups in the internal work force
Monitor the changing composition of the
internal work force over time
Make necessary changes to the EE
intervention to bring designated group
representation up to future targets
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Benefits of Implementing
Employment Equity - see Notebook
3.3, text p. 77



A work force representative of Canadian
culture and diversity
An increase in global competitiveness and
productivity
High employee morale and decreased
absenteeism
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Benefits of Implementing
Employment Equity (cont)



Amicable relationships with customers and
clients
Enhanced corporate reputation – being a
solid corporate citizen
Increased profitability and a better bottom
line
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Class Activity
1.
2.
You are the President of your company.
How would you encourage your managers
to promote Employment Equity in their
department?
What key areas of the recruitment and
selection process would you focus upon in
order to ensure equity and diversity?
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Labour Law


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)
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Employment Standards

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
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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
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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
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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
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Key Legal Concepts in Recruitment
and Selection (cont)


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 goodfaith belief that it was reasonably necessary
to ensure the efficient and economical
performance
of
the
job
without
endangering employees or the general
public
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Key Legal Concepts in Recruitment
and Selection (cont)


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
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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
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Key Legal Concepts in Recruitment
and Selection (cont)


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.
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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
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Class Activity
1.
2.
3.
What does it mean to accommodate
someone to the point of undue hardship?
When can an apparently discriminatory
selection practice by justified on the
grounds of “sufficient risk”?
How do you avoid asking questions that
may trigger a claim of discrimination?
(See Table 3.4, text pp. 81-83)
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Outreach Recruiting

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
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Recruitment and Selection
Notebook 3.5 – text p. 98

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
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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
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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
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Recruitment and Selection
Notebook 3.5 (cont)
◦ 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)
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Summary


The work force is becoming increasingly
diverse with regard to race, gender, and
disabilities
It is imperative that HR
respect diversity, human
employment equity
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professionals
rights, and
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Summary (cont)

There are four main legal sources:
constitutional law, human rights legislation,
employment equity, and labour law and
employment standards
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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
programs
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through
internal
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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
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Discussion Questions
1.
2.
What are the prohibited grounds of
employment discrimination in Ontario?
Why is relying on intuition or “gut feeling”
when making hiring decisions a risky
business?
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