Are your hiring practices free of discrimination?

Tribunals find against employers at hint of bias

When Samantha Elauf’s United States Supreme Court victory made headlines last month, commentators focused on the clash between fashion and faith. But for employers, it was an important lesson about focusing only on qualifications when hiring.

In 2008, Elauf, then 17, felt her interview at Abercrombie & Fitch had gone well. But when weeks went by without hearing from the popular fashion chain, Elauf reached out to a friend at the store. The friend confided it was her head scarf holding her back.

Abercrombie & Fitch had paid millions to several thousand employees in a classaction lawsuit in 2004. The allegations dealt with discrimination against AfricanAmericans, Latinos, and Asian Americans, in both its hiring practices and advertising.

However, with Elauf, the retailer would not budge. It took the position that it was pluralistic and had not regarded her head scarf in deciding not to hire her.

The Supreme Court disagreed. Based on the assumption Elauf ’s head scarf was worn for religious reasons (it was not discussed during the interview nor did Elauf request the need for a religious accommodation) it found the company’s rejection of her was motivated by a desire to avoid accommodating her religious practice.

Even if damage to your brand is not a concern, you should still be worried about potential complaints of this sort before the Ontario and Canadian human rights tribunals. In the past few years, both tribunals have made aggressive findings against employers who chose to focus on matters other than a candidate’s qualifications.

In the 2014 decision of Bouraoui vs. Ottawa Valley Cleaning and Restoration, a prospective employee was asked if he was white or black during a phone interview. Shockingly, the employer continued to text the applicant following the call, confirming his company would not hire foreigners.

In the Turner vs. Canada Border Services Agency case that same year, the employee alleged he was being excluded from staffing processes as a Customs inspector because of his age, race, and perceived disability of obesity. The tribunal found the employer discriminated against the employee and deprived him of job opportunities.

In the 2012 decision of Kartuzova vs. HMA Pharmacy Ltd., the tribunal found that the questions put to the pharmacy technician about her finances, family, marital status, and how she came to Canada violated the Human Rights Code. The interview ended abruptly after she answered those questions and she did not get the job.

Employers can largely hire and fire as they please, but they should not underestimate the power of the tribunals to crack down on practices that exhibit traces of discriminatory bias.

If you give preferential treatment during hiring to certain candidates, and exclude others because of their race, ethnicity, family status, gender, religion (this list is not exhaustive), there could be serious legal consequences.

Here are some tips: ❚Know the rules and laws. While the employee you are interviewing is technically not “in the workplace” just yet, educating yourself about what constitutes discrimination will help you prepare appropriate questions. ❚Recruit, hire, and promote with principles of fairness in mind. Do your best to implement practices designed to diversify the pool of candidates considered for a job. ❚Don’t shy away from selfanalyses. Take a step back and look at the organization as a whole to establish whether your employment practices are disadvantageous to certain people. ❚Regularly update the duties, functions, and competencies relevant to jobs in your workplace. Your job-related qualification standards should not only be objective, but relatable to the job. Once you establish what they are, apply them consistently in looking for a candidate. That is your best defence to what could be opportunistic claims of discrimination. ❚Ask all candidates the same questions during the interview process: Do not sway

Ask all candidates the same questions

from your script regardless of how much your curiosity piques you when sitting down with an interesting candidate. If you stick to the script, it will be difficult for the candidate to later argue that you asked inappropriate or invasive questions (the ones that usually result in violations of the Code). ❚Refresh upper management on qualifications for certain jobs. Doing this will force you to ask yourself if your selection criteria is excluding certain people. For example, don’t insist on a Bachelor’s degree for a job that requires a college diploma, just because you want a university-educated workforce. ❚Stay engaged with any recruitment agency you hire. While they are equipped to bring suitable candidates to you, they don’t have any interest in protecting you from claims of liability for discrimination. ❚Be prepared to accommodate. A potential employee might reschedule the late Friday interview because of the Sabbath; don’t hold it against them.