Introduction

Whether an employer is creating a new job position, or reorganizing existing job positions, the first step to be taken when hiring an employee is to identify the essential duties of the job to be filled.

While reviewing the essential duties of the job to be filled, an employer must also review the essential qualifications of the ideal candidate for the job.

It is essential to review the duties of the job and the preferred qualifications of the ideal candidate before hiring. Not only will these reviews help to frame an employer's obligations under human rights and/or worker's compensation legislation, but employers may actually have difficulty changing job duties after a position has been filled. If an employer makes a fundamental change to a job after employment commences, the employer may be found to have constructively dismissed the employee. More is said about constructive dismissal in a later chapter.

Recruiting

Prepare a job description

Preparing a job description will help to identify the essential elements of the job. Job descriptions also assist in the development of advertisements and set clear guidelines for the hiring process.

While it is important to identify the essential elements of the job, it is equally important not to overly itemize the day to day duties that the job will ultimately entail. An overly detailed job description can prevent an employer from assigning new tasks that would otherwise be consistent with the type of position being filled. A rigid job description may, therefore, ultimately promote inflexible employee expectations which can lead to litigation, rather than promoting certainty and clarity in the hiring process.

Do not discriminate

It is important to stress that an employer can not discriminate against an applicant during the recruiting and interviewing process. While employers in Canada are not subject to legislated affirmative action, all employers in Canada are subject to human rights legislation. While there are some differences in the substance of the human rights legislation across Canada, the prohibited grounds for discrimination are essentially the same. The Ontario Human Rights Code states, for example, that discrimination in employment is prohibited on the following grounds:

Race Ancestry Place of Origin Colour Ethnic Origin Citizenship Creed Sex (including pregnancy and childbirth) Gender Identity Gender Expression

Sexual Orientation Age Record of Offences Marital Status Same Sex Partnership Status Family Status Disability (physical or mental, or resulting from alcohol or drug dependency)

Most employers do not intentionally discriminate against job applicants, or intend on treating a new employee in a discriminatory manner. However, employers should be aware that the Supreme Court of Canada has held that an employer does not need to intend to discriminate in order to violate human rights legislation.

In addition, employers should be aware that discrimination in hiring can be labelled direct or indirect; both types of discrimination are prohibited.

Direct discrimination occurs when an employer creates employment criteria that, on their face, violate human rights legislation. For example, in Ontario it would be a direct violation of the Ontario Human Rights Code to refuse to hire a person who used a wheelchair.

Indirect discrimination occurs when the effect of the employment criteria is to discriminate against an individual on the basis of a ground protected by human rights legislation. For example, a requirement that all employees have a valid driver's licence is not discriminatory on its face. However, the criteria may discriminate against an applicant who can not operate a motor vehicle because of a disability.

An employer should therefore carefully define the essential requirements of a job in order to ensure that the qualifications advertised for that job are truly required for the position. Irrelevant job requirements may be found to be discriminatory and in violation of human rights legislation.

Advertise the position

A broadly advertised position will attract the largest, most diverse pool of qualified applicants.

How an advertisement is worded is particularly important. Canadian human rights legislation prohibits discriminatory job advertisements; for example, an employer can not express a preference for an applicant based on gender. Similarly, an employer can not advertise a job in a manner that implies that only one gender is welcome to apply for the position. For example, an employer should not advertise for a "girl Friday", or a "handy man". An employer may set out legitimate preferences for candidates based upon the requirements of the job position; for example, an employer can advertise for an "executive assistant", or state that "heavy lifting is required".

An employer must also ensure that a job advertisement does not indirectly discriminate against a potential applicant on religious, or other protected grounds. For example, an employer should not state that an employee will be required to work on Friday nights. This requirement would likely deter applications from individuals who are unable to work Friday nights for religious reasons. Without meaning to, the employer could be found to be discriminating on the basis of religion. Instead, an employer may want to state that "shift work is required".

Know the law. It is a good idea to consult a qualified lawyer early in the hiring process. The law varies in the various jurisdictions across Canada, and an employer will avoid even innocent contraventions of human rights legislation by being informed about the applicable requirements.

Applications and Interviews

The law recognizes an employer's right to recruit and hire the most qualified candidate for the job. However, the law requires that employers not limit the candidates it considers on the basis of a prohibited ground of discrimination. In an effort to get to know applicants, both at the application and interview stages of the process, employers may ask seemingly innocuous questions without appreciating that the questions are prohibited by human rights legislation.

Impermissible Questions

The following is a summary of what inquiries are and are not permissible during the application and interview process:

Please note that this is only a general summary. The law may vary from one jurisdiction to another, and there may be many exceptions to the many rules. Legal advice should be sought from a competent lawyer within the employer's jurisdiction.

Race/Colour. Employers are not permitted to ask any questions designed to determine the race or colour of an applicant. Questions about physical characteristics such as height, weight, eye or hair colour, or requests for photographs are therefore also prohibited.

Creed. Employers are not permitted to ask questions about an applicant's religious affiliation, religious holidays they celebrate, customs they observe, or their willingness to work on a particular day which may conflict with religious requirements (such as Friday evenings, Saturdays or Sundays). An employer may explain that shift work is required, asking whether such scheduling poses a problem; however, the employer also has a duty to accommodate the religious requirements of the applicant to the point of undue hardship.

Citizenship/Place of Ethnic Origin. An employer may ask whether the applicant is legally entitled to work in Canada. Questions about an applicant's citizenship, landed immigrant status, permanent residence, naturalization, or social insurance number (SIN number) are all prohibited. A work authorization and social insurance number may be requested once a conditional offer of employment has been made.

Sex/Gender Identity/Gender Expression. Employers are not permitted to ask an applicant to identify his or her gender, ask for documents indicating an applicant's sex (i.e. birth certificate or driver's licence), or have male and female applicants fill out separate forms. Employers are not permitted to ask an applicant's maiden name, or to identify whether she or he prefers Mr., Ms., Miss or Mrs. An employer may not ask an applicant about the relationship of the person to be notified in the case of emergency; it is always prudent simply to ask for this information after an offer of employment is made

Employers are not allowed to ask whether the applicant has, or is planning to have, a family or to ask questions about child care. An employer can ask whether attendance requirements can be met.

Sexual Orientation. Employers are not permitted to ask about an applicant's sexual orientation. Similarly, an employer may not ask questions about the applicant's marital status or his or her spouse. An employer may not ask an applicant about the relationship of the person to be notified in the case of emergency; it is always prudent simply to ask for this information after an offer of employment is made

Marital Status. Employers are not permitted to ask questions about a person's marital status, including whether the applicant prefers to be identified as Mr., Ms., Miss., or Mrs. Information about the applicant's spouse, including his or her income, position and willingness to relocate are all similarly prohibited.

An employer may not ask an applicant about the relationship of the person to be notified in the case of emergency; it is always prudent simply to ask for this information after an offer of employment is made

Family Status. Employers may not ask questions about the applicant's child care arrangements or the number of children (if any) that the applicant has. Employers may also not ask questions about an applicant's spouse. However, depending upon on the jurisdiction and the policies of the employer, it may be permissible to ask whether the applicant has any relatives currently working for the employer. For example, in Ontario an employer may withhold employment or advancement in employment to a person who is a spouse, same-sex partner, child or parent of the employer or an employee.

Record of Offences. An employer may ask whether the applicant has ever been convicted of a criminal offence for which a pardon has not been granted. An employer may not ask whether the applicant has ever been convicted of "any offence" or whether the applicant has ever spent any time in jail. Generally, an employer may not ask the applicant if he or she has ever been convicted of a provincial offence, such as the Highway Traffic Act.

Age. Employers may not ask questions about an applicant's age, including his or her date of birth, or for documents indicating a birth date (i.e. birth certificate or driver's licence).

An employer may ask whether the applicant is eligible to work under Canadian laws where there is a legislated age restriction. For example, in Ontario, it would be permissible to ask an applicant if he or she was at least 14 years old if the workplace is an industrial establishment because the Occupational Health and Safety Act requires that employees in workplaces, other than factories, construction sites, mining or logging operations (where the minimum age is higher), be at least fourteen years of age.

If the applicant's age is a factor for benefits or other legitimate purposes, the employer can determine the age of the applicant after they have been hired.

Disability/Handicap. An employer may not ask an applicant any questions about his or her disabilities; including question about current or past illnesses, mental disorders, physical or mental limitations or impairments, injuries (including claims made under the Workplace Safety and Insurance Act), medications taken, or membership in associations such as Alcoholics Anonymous. Similarly an employer may not ask an applicant about his or her medical history,

An employer is also not permitted to ask if the applicant uses drugs or alcohol.

During an interview, an employer may ask whether the applicant has the ability to perform the essential duties of the job with or without accommodation, and if accommodation is required, the nature of the accommodation.

Driver's Licence. An employer may ask an applicant if they have a valid driver's licence if a valid driver's licence is a bona fide requirement for the job (for example: a bus, truck or taxi driver). However, it is inappropriate to ask for a copy of the driver's licence during the application or interview process. A copy of the driver's licence can be obtained from the applicant, and verified as valid, as a condition of an offer of employment.

Military Service. An employer may not ask whether an applicant has military service in countries outside of Canada as this may identify his or her place of origin, ethnic origin or citizenship. An employer should not ask an applicant if he or she has Canadian military service unless employment preference is given to veterans by law, as this question may also identify an applicant's place of origin, ethnic origin or citizenship.

Language. An employer may not ask an applicant to identify his or her native language, or where he or she learned their language skills. It is appropriate to ask the applicant whether they understand, and can read, write or clearly speak the language(s) required for the job. It is not appropriate to require that an applicant speak English "without an accent".

Photographs. Employers may not ask for a photograph of the applicant. If a photograph is required for security passes or company files, it can be obtained after the applicant has accepted an offer of employment.

Other Information Relating to the Application Process

Affirmative Action. Private Canadian employers are not required to include an EEO-type statement on employment applications or documentation setting out that they are an equal opportunity employer. However, there is nothing wrong with including such a statement in an advertisement, on the application form, or elsewhere.

Authorization. An employer should obtain an applicant's written authorization that references and information on the application form can be verified. The authorization may be as simple as a brief statement authorizing the employer to make the appropriate inquiries, followed by the applicant's signature.

Declaration as to accuracy. The application form should contain a statement, to be signed by the applicant, declaring that the information provided is true and complete and indicating that the applicant understands that false statements may disqualify the applicant from employment or be cause for his or her dismissal.

At-Will-Statement.Unlike the United States, employment in Canada is not at-will. In Canada, an employer is generally required to provide an appropriate period of notice of dismissal to an employee, where the dismissal is not for cause. This area will be discussed in later chapters.

Sample Application for Employment

The following sample application form is based on the form contained in the Ontario Human Rights Commission's publication: Hiring? A Human Rights Guide. It is provided as a general guideline for your review only and with the understanding that neither the publisher nor the writers are providing legal advice or other professional service. The law changes regularly and varies within the various Canadian jurisdictions, and you should not rely on or use this or any form without consultation with a competent attorney.

Sample Employment Application:

Position Applied For:___________________________ Date Available:_________

Personal Data

Last Name:_____________________ Given Names:_____________________
Address: Street:_____________________ Apt. No._________ Home Telephone Number:_________
City:__________________ Province:__________________ Postal Code:_________ Business Telephone Number:_________

Are you legally eligible to work in Canada? _____ Yes _____ No
Are you at least 18 years of age? ___ Yes ___ No
Are you willing to relocate in Ontario? _____ Yes _____ No
Preferred Location:___________________________

To determine your qualification for employment, please provide below and on the reverse, information related to your academic and other achievements including volunteer work, as well as employment history. Additional information may be attached on a separate sheet.

Education

Secondary School: ____ Business, or Trade School: ____
Highest Grade or Level Completed: _________ Name of Course: _________
Length of Course: _________
Type of Certificate or Diploma Obtained: __________________
License, Certificate or Diploma Awarded? _____ Yes _____ No

Community College: __________________ University: __________________
Name of Program: ___________________________ Length of Program: _________
Length of Course: ___________________________
Degree Awarded: ___________________________
_____Pass _____ Yes _____ No _____ Honours
Diploma Received _____ Yes _____ No Major Subject: _________
Other Courses, Workshops, Seminars: _________
Licenses, Certificates, Degrees: ___________________________

Work related skills:

Describe any of your work-related skills, experience, or training that relate to the position being applied for.
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

Employment:

Name and Address of Present/Last Employer: __________________ Present/Last Job Title:__________________
Period of Employment: From:_________ To:_________
Present/Last Salary:_________ Name of Supervisor:___________________________ Telephone:_________
Type of Business:__________________ Reason for Leaving:___________________________
Functions/ Responsibilities:_____________________________________________

Name and Address of Former Employer: __________________ Last Job Title:_________
Period of Employment:_________ From:_________ To:_________
Last Salary:_________
Name of Supervisor:__________________ Telephone: _________
Type of Business:__________________ Reason for Leaving:___________________________
Functions/Responsibilities: _____________________________________________

For Employment References you may approach: ___________________________
Your Present/Last Employer? _____ Yes _____ No
Your Former Employer(s) _____ Yes _____ No

List references if different than above on a separate sheet.

Personal interests and activities (civic, athletic, etc.):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

I hereby declare that the foregoing information is true and complete to my knowledge. I understand that a false statement may disqualify me from employment, or cause my dismissal.

I authorize you to request and receive any and all information from my entire work and personnel history.

Have you attached an additional sheet? _____ Yes _____ No

Signature: ________________________ Date: ________