As HR professionals, there are two legal concepts that guide our actions when we work within the scope of human rights legislation. The first is the concept of intent. When we deal with actions that may be discriminatory in nature, the intent does not matter—the effect does. This means that while an individual may not have intended to make a racist slur or a sexist remark, when they do so or are perceived to have done so, another person is adversely affected by that remark. The second is the concept of reasonableness. In our civil society, a reasonable person would know that not only is a racial slur or sexist remark discriminatory, it is completely unacceptable.
While each province has its own Human Rights legislation, they all identify the prohibited grounds that form the basis for employment discrimination. One of the common grounds found in all provincial and federal human rights legislation is that of age. It is discriminatory to deny or exclude someone from employment-related matters based on their age. All good HR practitioners know that it is illegal to ask someone’s age during the screening and recruitment process. This does not mean that it does not happen.
Facebook was in the negative news cycle recently due to its targeted job advertisements, which excluded individuals based on characteristics linked to prohibited grounds, including age. As noted in this article, this practice by Facebook violated Canadian Human Rights legislation. The article goes on to explore two other examples of age-related discrimination, which occurred during each of their respective recruitment processes. These cases show us how age discrimination can occur through the unintended actions and words on the part of potential employers.
The case of Moore v. Ferro (Estate), is analyzed further in this article “Unintentional Discrimination is Still Discrimination.” This complaint was filed on the basis of two prohibited grounds, age and race. It is interesting to note that the human rights tribunal identified how the age factor had an adverse effect on the complainant, as there was “evidence of reliance on stereotypes about older people.”
There are interviewing tools provided by provincial bodies, such as the Human Rights Commission of Ontario. These tools provide guidance to ensure that the recruitment process is fair, and aligns with human rights legislation for everyone. It seems a reasonable and prudent thing to review before setting up any recruitment process in the future.
The fact that the case Moore v. Ferro (Estate) happened within the setting of a law firm should remind us that due diligence and legislative compliance can happen anywhere, but must prevail, no matter what.
- You are guiding a recruitment process as the HR advisor. Two candidates are equally qualified for selection. One candidate appears to be much older than the other. What advice will you give to the hiring manager for when they decide on a candidate?
- What measures can you put into place to avoid a situation that causes an “adverse effect” in the recruitment process?
- Have you experienced unintended discrimination in a workplace? How did it impact or affect you?