03: Legal Issues

Discrimination Matters

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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.

Discussion Questions:

  1. 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?
  2. What measures can you put into place to avoid a situation that causes an “adverse effect” in the recruitment process?
  3. Have you experienced unintended discrimination in a workplace? How did it impact or affect you?

The Other Side of the Coin: The Rules of a Resignation

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Wrongful Resignation is a term you do not hear very often in the world of HR.

All provincial Employment Standards Acts (ESAs) make it a requirement for employers to give an employee proper notice, or pay in lieu of notice, upon termination. However, there is no requirement under ESA laws for the employee to give proper notice to their employer.

However, the absence of any such legal obligation does not mean employees are able just to quit and walk out.

A common law employment concept exists which functions as the opposite side of the wrongful termination coin — wrongful resignation. The notion of wrongful resignation serves to remind HR practitioners that there are two parties in the employment relationship; the employee and the employer. Yes, the laws place significantly more obligations on the employer, but this does not give the employee carte blanche to disregard the contractual relationship.

Click here to read about a case in which the Canadian courts upheld an employer’s wrongful resignation claim, awarding the employer $35,000 in damages.

When a contract of employment is brought to an end by an employee, they must treat their employer fairly by taking into account the impact the resignation is likely to have. Here is a list of some considerations an employee should consider prior to resigning:

  • How long have they worked there?
  • How specialized is the job or work?
  • How easily can the employer find a new replacement employee?

Wrongful resignation suits are not currently the norm, but they may become more common as employers seek to ensure that their rights are protected when key employees choose to leave, especially if those employees are recruited by an executive recruiter, or directly by a competitor.

 

Discussion Questions:

List several proactive steps an employer could take to prevent having employees resign wrongfully.

Your VP of HR has asked you to create an employment contract. Create a list of items you would include in that contract.

What’s In a Name?

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The law is clear. Both federally and provincially, human rights legislation prevents discrimination for purposes of employment on the basis of prohibited grounds. The prohibited grounds, as defined within each piece of legislation, include (and are not limited to) race, religion, colour, place of origin, and national or ethnic origin.

What is also clear is the gap between the standard as expressed by the legislative requirements and the level of performance exhibited by many Canadian organizations. Unfortunately, the poor performance of these organizations confirms that ongoing discrimination based on ethnicity or race continues to exist in hiring processes and practices.

Certainly, we would like to think that most Canadian companies do not have overt discriminatory practices. The issues of unconscious bias or cultural perceptions, however, continue to get in the way of sound performance throughout the recruitment process. It does not matter if the discrimination is overt or unintended. The end result is that qualified and capable individuals may not be selected, primarily because of their ethnic origins. A candidate’s ethnic origins may be identified, quite easily, by their name.

In order to address this particular performance gap, the federal government has implemented a process of ‘name-blind’ recruitment as a pilot project.

Click here to read the article.

As noted in the article, the federal government initiated the process of name-blind recruitment based on statistical analysis from a data-based employment research project. According to the article, the research provides significant evidence that persons with Asian-sounding names have fewer opportunities to participate in the recruitment process than counterparts with Anglo names.

In this case, the data speaks for itself.

In addition to addressing the unconscious bias issue, the federal government’s move to using neutral recruitment practices shows us how data-based decision making can be implemented in order to improve organizational performance. Changing the recruitment practice is not something that should be done on intuition. It should be done with a fact-based perspective, using data-driven evidence that can be implemented and monitored to evaluate ongoing performance.

It is time to close the gap.

Discussion Questions:

  1. As the recruitment specialist for your organization, how would you convince your current employer to adopt the practice of name-blind recruitment?
  2. As a candidate, how comfortable would you be if you knew your resume was being reviewed without your name on it?
  3. Do you have experience or evidence of a candidate being excluded for a position on the basis of unintended/intended bias? What would you do differently now that you have awareness of issues linked to potential bias?

 

Is the Salary Question Awkward or Inappropriate?

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Should candidates be asked about their salary history as part of the screening and hiring process?

A recent article posted in Human Resources Director Canada cites an American push, in certain states, to ban asking candidates questions about their recent salaries as part of the recruitment process.

Click here to read the article.

It seems a curious thing to be asking about, in the first place.

From a best practice perspective, asking candidates about their salary history comes loaded with difficulties, especially in a Canadian HR context. As we have learned from our Recruitment and Selection studies, our focus as Human Resources practitioners is to ensure that the end-to-end hiring process is as neutral and objective as possible.

While the article speaks to the benefits of assessing a candidate’s monetary expectations, asking the question about how much money the candidate makes now is, in the opinion of this HR blogger, completely irrelevant.

Candidates are better served by having a clear and transparent understanding of the position requirements, the duties, the responsibilities, the expectations and the compensation range that will apply to the successful applicant in the position. It is the value of the position that pays the wage, not the value that is placed on the person applying for the job. This is why we have compensation related legislation in place including the Pay Equity Act of Ontario, the Employment Standards Act and, of course, the fundamental principles of equality and fairness outlined in the Ontario Human Rights Code.

If a candidate chooses to apply for a position that is at a lower compensation level than their current situation, that is their choice. The employer is not obligated to over-compensate the applicant, if they are hired, for making that choice. Similarly, if a candidate applies for a position at a higher rate than their current wages, the ethical employer will not (should not) pay lower than the pre-determined compensation level if that person is hired into that position as a result.

When there is a salary range linked to a position, that range should be the only determinant that sets the wage in order to ensure a fair and equitable assessment of mutual values.

Bottom line, some questions are just not worth the asking.

Discussion Questions:

  1. As a candidate, how would you respond to a question that probes your salary history during the interview process?
  2. What are the benefits to the HR practitioner in asking about candidate salary history?
  3. What are the perils to the HR practitioner in asking about candidate salary history?

 

Probationary Periods Just Got Muddy

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Uncertain stressed woman during her job interview
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Whose probationary period is it, anyway?

The Cambridge online dictionary definition of “Muddy the Waters” is “To make a situation confused and less easy to understand or deal with.”

Well, this is what is happening in Canadian employment law, especially in regards to employment probationary periods. An employer in British Columbia has just been ordered to pay 3 months’ pay in lieu of notice to an employee who was terminated after working for just two months, and he was on a standard probationary period.

What gives? Isn’t the point of an employment probationary period to test or trial a person’s character or conduct, which has been an accepted practice since the early 1500s? Well maybe not anymore in Canada; probationary periods just got very muddy!

Click here to read the latest legal precedent in probationary periods.

In this case, it seems the Interior Health Authority who was the employer failed to meet the test of sufficient feedback to the employee on probation. The employer only met with the employee once about his poor performance, which in fact was the termination meeting. The employer’s conduct did not give the employee any opportunity to improve his performance prior to being terminated, even though the employee was on probation.

Just because the employee is on a probationary period this does not give the employer carte blanche to terminate the employment relationship. All actions in the workplace must be reasonable: the rule or natural justice and progressive action are still required even with a probationary employee. HR Departments must ensure their probationary period contracts will be defendable in court, by ensuring proper HR practices are implemented during the probationary period.

Discussion Questions

  1. Research and identify three different employment probationary period clauses, once you have reviewed them, create your own probationary clause.
  2. After reading the attached case, develop a probationary review program which would avoid paying unnecessary termination payouts.