Discrimination in the Hiring Process

Job postings

Section 11 of the B.C. Human Rights Code (the “Code”) prohibits an employer from publishing a job posting that expresses a limitation, specification, or preference as to a protected characteristic unless the limitation, specification, or preference is a bona fide occupational requirement.

Protected Characteristics

The protected characteristics under the Code are race, colour, ancestry, place of origin, Indigenous identity, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, age, or a criminal or summary conviction that is unrelated to the job.

Bona Fide Occupational Requirement

A bona fide occupational requirement must:

Have a legitimate job-related purpose;
Be adopted on a good-faith belief that the standard is necessary to fulfill the legitimate job-related purpose; and
Be reasonably necessary to achieve the legitimate job-related purpose. To prove that the standard is reasonably necessary, an employer must show that it cannot accommodate the candidate (or others sharing the candidate’s protected characteristic) without suffering undue hardship.

For example, an employer can advertise to hire only women for a position as an intake worker at a shelter for abused women.

Occupational requirements that are not bona fide:

Relate to incidental duties instead of essential parts of the job.
Are based on coworker or student preferences and exclude persons because of characteristics protected by the Code.
Rely on stereotypical assumptions linked to protected characteristics, such as disability, race, or sex, to assess an individual's ability to perform the job duties.
State that the job must be performed only in a certain way even though reasonable alternatives may exist.

Having a clearly defined job description and an understanding of the essential requirements of the job provides a solid basis for designing standards, providing accommodation, assessing the performance of candidates, and making hiring decisions.

Job postings

The Code does not prohibit employers from asking questions that relate to a protected characteristic. However, the Human Rights Tribunal has found such questions to be discriminatory in some cases.

For example, in one case[1], the employer asked the candidate (who was interviewing for a waitressing position) about her age, marital status, and whether she had kids. The interview ended shortly after she answered these questions and she was not hired. The Human Rights Tribunal found that, without an explanation for why the questions were relevant, the questions were inappropriate as the answers might be used for discriminatory purposes. It did not matter that the employer did not intend to discriminate.

The Human Rights Tribunal recognized that an employer may have legitimate concerns about a candidate’s availability for shifts. However, such concerns should be addressed through direct questions about availability, rather than questions about protected characteristics. Employers should avoid making assumptions that a parent will be less committed to their work, for example, or that a young woman will go on maternity leave shortly after starting a job.

As a general rule, an employer should only ask what is necessary to make a hiring selection on the basis of skills and merit. However, an employer can ask about protected characteristics in order to assess whether the candidate meets a bona fide occupational requirement.

An employer should aim for a fair process that focuses on each candidate’s ability to perform the essential job duties. Best practices for interviewing include:

Having a multi-person panel conduct interviews. Ideally, the interview panel should reflect the diversity available in the organization.
Developing set questions in advance, and asking all candidates the same questions. The questions should be based on the job’s essential duties and bona fide occupational requirements.
Creating an answer guide, before interviews start, showing the desired answers and a marking scheme.
Requiring each member of the interview panel to record and score the candidate’s responses against the answer guide.

[1] McGregor v. Morelli and Quarterway Hotel, 2006 BCHRT 277

Selection Criteria

Using objective criteria helps employers avoid making decisions based on subjective considerations such as whether the person exhibits “confidence” or is viewed as “suitable”. Employers who rely on these kinds of subjective assessments are vulnerable to claims of discrimination. Further, hiring decisions based on informal processes are more likely to lead to biased decision-making. For example, conducting an interview by chatting with the candidate to see if they share similar interests and will fit into the organizational culture may present a barrier for persons who are or appear to be different than the dominant norm in the workplace.

Using objective criteria may still result in discrimination if it excludes, restricts, or prefers some persons because of a protected characteristic. For example, a written test for a job that does not require strong writing skills may screen out persons who speak English as a second language.

While the same hiring process should be used for all candidates, employers should keep in mind that some candidates may require accommodation during the hiring process (e.g. for tests).

Hiring Decisions

Section 13 of the Code prohibits an employer from refusing to employ a person because of a protected characteristic, unless the refusal is based on a bona fide occupational requirement. See “Job Postings” above for the list of protected characteristics and the criteria for bona fide occupational requirements.

The decision-making process should be uniform, consistent, transparent, fair, unbiased, comprehensive, and objective. Answers provided in an interview or test should be scored against pre-set criteria that are based on the essential job requirements. Once a hiring decision is made, an organization should be able to document non-discriminatory reasons for hiring or not hiring each candidate.

Bias or stereotypes in the decision-making process may lead to eliminating candidates on the basis of grounds protected under the Code. The following list provides a few examples of hiring decisions that may be tainted by discriminatory considerations:

Rejecting applicants because they do not match the organization’s “image” or “fit” the organization’s culture. This could disadvantage persons identified by race and race-related grounds, older applicants, persons with disabilities, or other people who are easily identified as not belonging to the dominant group.
Not hiring someone due to a perceived lack of “career potential”. This requirement tends to adversely affect older applicants, especially when they are applying for entry-level type jobs.
Refusing an applicant who has “too much experience” or who is “overqualified”. Turning away candidates who are “overqualified” may sometimes have an adverse effect on older candidates, people who are seeking to re-enter the workforce after lengthy absences (such as people with disabilities or who have caregiving responsibilities), and newcomers to Canada.
Assuming that a person is not suitable without fully assessing their qualifications. Persons with disabilities may be affected by “social handicapping” when they are presumed to be unable to do the job, even though their disabilities are not relevant. This may also affect older candidates, women, and racialized persons.
Eliminating applicants because their backgrounds contain gaps. This can be a particular problem for women who have re-entered the workforce after childrearing and have had to retrain. This may also be a barrier for persons with disabilities who were out of the workforce for an extended time for medical reasons.
Viewing an applicant as unsuitable because they needed accommodation in the hiring process. When making hiring decisions, employers should not consider whether a person has requested accommodation during the hiring process.
Perceiving that an applicant is trouble or will be disruptive because they have objected to discriminatory comments or conduct in the interview. It is retaliation for a qualified applicant to be penalized for reacting to discriminatory comments or conduct related to a Code ground in an interview. For example, an employer asks a candidate whether she is single. She says that is not relevant and asks that the interview focus on her qualifications. As a result, she is viewed as not having “people skills” and is no longer considered for the job.
Considering discriminatory preferences. If an employer believes that others would object to a person being hired due to their membership in a group protected by the Code, it is not allowed to take this into account. For example, it would be discriminatory for a university to reject a candidate because of their age due to a belief that students prefer younger instructors.

Unless providing accommodation would impose undue hardship on the employer, it would constitute discrimination to reject a candidate because they would need accommodation if hired. Undue hardship is a high threshold to meet and requires a case-by-case analysis.

Special Programs

Section 42 of the Code states that it is not discrimination for an employer to plan, advertise, adopt, and implement an employment equity program (i.e., a program that prefers or limits hiring to persons with a certain protected characteristic) so long as the program: (a) is aimed at improving equity for individuals or groups who are disadvantaged because of race, colour, ancestry, place of origin, physical or mental disability, sex, sexual orientation, or gender identity or expression; and (b) achieves or is reasonably likely to achieve that objective. These programs are referred to as “special programs”.

If a special program has been approved by the employer and/or the Human Rights Commissioner, it would not be discrimination for the employer to publish a job posting that targets candidates with a certain protected characteristic, to ask candidates whether they possess that protected characteristic, or to refuse to employ candidates because they do not possess that protected characteristic.

Questions?

If you have any questions or concerns about discrimination in the hiring process, the Human Rights Office provides confidential and impartial advice, support, referrals, and information to students, faculty, and staff on all issues related to human rights. Contact us or visit our Get Help page for additional resources.

SFU managers and supervisors can also review the hiring resources prepared by Human Resources, which are linked here.

Click here to access the Discrimination in the Hiring Process in PDF.