discrimination

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?

What’s In a Name?

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M-SUR/Shutterstock

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?

 

Social Media Savvy

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Trying to pretend that employers do not use social media sites to ‘check out’ potential candidates is a bit like trying to push the squeezed out toothpaste back into the tube – It is pretty much impossible at this point in time!

Tube of Toothpaste
Source: Leah-Anne Thompson/Shutterstock

We live in a social media construct that is continuing to develop.  It is definitely time that we become more diligent in shaping how HR Professionals should be using social media effectively for purposes of employment and applicant screening.

Lyndsay Wasser, co-chair of the privacy group at McMillan LLP, provides a well-balanced approach to the benefits and risks of using social media in this context.

Click Here to View the Clip

Ms. Wasser certainly identifies the risks related to using social media searches, if they are not done properly.  If we are snooping around on social media sites, without explicit candidate knowledge or consent, this could be extremely problematic from a privacy and/or possible discrimination perspective.  More practically, if we do not have consent to access information gained through social media, we cannot use it anyway.  So, why bother snooping?

If we are going to be using social media for employment screening, let’s use honesty, professional judgement, and be transparent about it.  As Ms. Wasser points out, there are definite benefits to be gained through employer driven social media searches, such as assessing potential candidates for insight into their good judgement, professionalism, and whether or not there is any misrepresentation on the part of the candidate that might be revealed through their social media profiles.

It seems only fair that this type of assessment should apply to conscientious employers as well.

Discussion Questions:

  1. As an HR professional, how will you inform potential candidates that their social media profiles may be used for purposes of assessment during the applicant screening process?
  2. What types of social media sites do you think are inappropriate for an employer to access?
  3. Do you think there is a benefit for including social media scans for purposes of employment screening for all candidates? Why or why not?
  4. What types of social media sites do you use to assess potential employers in your own career or job search?