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Complying with Human Rights Legislation When Hiring

by Kyle Power

The recruitment and hiring of new employees is one of the most important activities undertaken by any business or organization. Finding employees who not only have the skills and qualifications required for the job is essential, but so too is finding someone with that “x factor”, someone who is “the right fit”. With employers under increasing scrutiny from human rights legislation, recruitment processes must also be designed to eliminate both explicit and implicit biases, while still fulfilling the organization’s needs. What follows are some tips to take into account when undertaking your next hire.

1. The Requirements of the Job
All positions require performing certain tasks that may be considered ‘requirements’. The requirements must be reasonable and genuine, in legalese known as “bona fide”.
Bona fide job requirements must be rationally connected to the job. Employers have an obligation to have at least considered alternative approaches or “work arounds” to the requirement if the requirement may prevent someone covered under a protected human rights ground from performing the position. This process is called accommodation. The ultimate standard that an employer will be tested against is whether a potential accommodation would cause undue hardship to the employer.
Protected human rights grounds include disability, family status and sex. A full list of protected grounds can be found in the Nova Scotia Human Rights Act.

2. Posting the Job
Advertisements for jobs should not include requirements that appear neutral but ultimately serve as discriminatory barriers. A receptionist, for example, may require the ability to speak in clear and intelligible English, but it is not acceptable to require “unaccented” English. When writing a job posting, consider if the essential duties and requirements are clearly explained in non-discriminatory wording.
Employers should also consider a statement that the employer is an equal opportunity employer and reasonable accommodations will be provided through the hiring process if required.

3. Conducting Interviews
Employers must design a fair interview process that focuses on candidates’ ability to perform the identified essential job requirements.
A best practice for hiring in larger organizations is the formation of a multi-person panel to conduct the interviews, preferably one that reflects the diversity found in the organization. This panel should develop questions and desired answers in advance, allow each candidate to answer all of the questions, and then score the answers against what was desired. Without such objective criteria an employer may have subsequent difficulty explaining why particular candidates were or were not qualified for the position.

While this is not an exhaustive guide to human rights compliance in the hiring setting, it should provide a good starting point for those looking to design more equitable hiring practices. For more information about employment law, hiring, and human rights law, please contact our Labour and Employment Law department.

*This article is meant to be for information purposes only and is not intended to be legal advice or opinion. If you have any further questions please consult a lawyer. Many of the statements in this blog post are general principles which may vary depending on each person’s case.