a) Make sure that job requirements are reasonable and made in good faith
All jobs include performing certain tasks that may be considered requirements. A requirement, qualification or factor that is neutral and non-discriminatory on its face, may nonetheless exclude, restrict or prefer some persons because of a ground set out in the Code. This is often called "adverse effect” or "constructive" discrimination and is prohibited under section 11 of the Code. See also Section III-2g) – “Workplace rules that are not bona fide”.
Example: An employer has a rule that male employees must be clean-shaven. This rule results in the employer refusing to hire a Sikh man. This rule is not intended to exclude Sikh men (who as a part of their religion are not allowed to shave) from employment, but it has this effect and therefore would be considered discriminatory.
If a person is prevented from meeting job requirements for a reason that is related to a ground in the Code, human rights law looks at whether these requirements are reasonable and bona fide (bona fide means “good faith” or “genuine”). This assessment includes determining whether the rule was designed inclusively and whether it would be possible to accommodate, without causing undue hardship.
Example: Even if the rule requiring employees to be clean-shaven is shown to be reasonable and bona fide (the rule is rationally connected with performing the job, and the rule was established in good faith), the employer will only be able to insist that Sikh men observe the rule if creating an exception will cause undue hardship to the employer. In this example, the business objective may be to ensure hygiene when preparing food. However, Sikh men can easily be accommodated by allowing them to wear a net to cover their beard, which should not cause the employer undue hardship.
Some requirements may be directly discriminatory and yet not violate the Code, if the employer can show that it is a reasonable and bona fide occupational requirement.
Example: A health club has a requirement that staff in a men’s locker room must be men. This requirement would likely meet the test for a reasonable and bona fide occupational requirement.
i) Test for bona fide requirement:
Whether the discrimination is direct or by adverse effect, the Supreme Court of Canada has set out the same three-step test for justifying a discriminatory standard, factor, requirement or rule as a bona fide requirement.[38] The Commission applies this test for all grounds and discusses this in detail in many of its policies.
When a human rights claim alleging discrimination is filed, the respondent must establish on a balance of probabilities that the standard, factor, requirement or rule:
- was adopted for a purpose or goal that is rationally connected to performing the job
- was adopted in good faith, in the belief that it is necessary to fulfill a legitimate work-related purpose
- is reasonably necessary to accomplish the work-related purpose. To show that the standard is reasonably necessary, employers must show that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
As a result of this test, the rule or standard must be inclusive and must accommodate individual differences up to the point of undue hardship. It is not enough to maintain discriminatory standards and supplement them by accommodating people who cannot meet them. This means that each person must be assessed against his or her own personal abilities, instead of being judged against presumed group characteristics.
Example: A manager must leave work at 5 p.m. to care for her young children. The employer often has senior managers’ meetings after this time. Such a practice has a negative impact on managers with child-care responsibilities.
Example: An employee's mother has developed Alzheimer disease and needs greater care and assistance. The employee needs to take time during normal business hours to arrange home care in the short term and nursing home placement for the longer term. While the employee only needs a few mornings a week to arrange for care, the employer's policy requires that personal leave must be taken in full days.
ii) Taking a proactive approach to bona fide requirements:
In some cases, differential treatment linked to a Code ground may be legitimate if the employer can show that it is a bona fide occupational requirement.
Example: A woman who was seven months pregnant was denied a job as kitchen help in a restaurant. The human rights tribunal heard evidence that the job would be physically demanding. As the woman had never performed these kitchen duties before, she would not know the extent of the physical requirements expected for this job. The tribunal was satisfied in this case that it was likely that not being in the later stages of pregnancy was a reasonable occupational requirement.
Rather than wait for rules to be tested through human rights claims and allegations, a best practice is for new and existing job requirements to be assessed to make sure they will not have a discriminatory impact and are necessary for performing the essential duties of the job. This section provides tips to help employers proactively comply with the Code when putting in place new standards, factors, requirements or rules.
As a best practice, before implementing a standard, factor, requirement or rule, an employer will assess it according to the standards set out by the Supreme Court of Canada and reflected in the Commission’s policies. Employers can consider the following questions and factors, among others:
- For what goal or purpose is this rule or standard being adopted?
- Is the goal or purpose rationally connected to doing the job?
- Why is the rule or standard being adopted?
- Is it being adopted in good faith?
- Is it reasonably necessary to meet a legitimate work-related purpose? A standard will not be considered reasonably necessary unless the employer can show that it would be undue hardship to accommodate individual employees sharing the characteristics of the claimant.
- What alternative approaches are there?
- Have these been fully investigated?
- Are there alternative approaches that do not have a discriminatory effect? Do these approaches meet the employer’s purpose?
- Is there a less discriminatory way to meet the standard and accomplish the employer’s legitimate purpose?
- If alternative non-discriminatory approaches that fulfill the employer’s purpose exist, why can they not be used?
- How can the standards be designed to comply with the Code?
- Could standards that reflect group or individual differences and capabilities be set up?
- Is the standard properly designed to make sure the desired qualification is met without placing undue burden on the people it applies to?
- Does the standard incorporate the concept of accommodation?
- Is accommodation being provided to the point of undue hardship?
- Have other parties who are obliged to assist in the search for accommodation fulfilled their roles?
Records on these types of assessments of rules and standards, including efforts to assess and achieve accommodation, should be retained. These records would be relevant when determining whether the rule and standards are discriminatory if any human rights concerns are raised.
It is also important to make sure that any bona fide requirements, policies or rules relevant to the selection criteria are kept up to date once they are put in place. For example, a policy that has been in place for so long that nobody remembers why it was created in the first place is vulnerable to challenge on the basis that the employer does not have a belief that it is connected to performing the job (the second part of the bona fide requirement test).
iii) Requirements that are not bona fide:
Some requirements will not be considered to be reasonable or bona fide. Examples include requirements that:
- relate to incidental duties instead of essential parts of the job
- are based on co-worker or customer preferences and exclude persons because of grounds protected in the Code
- rely on stereotypical assumptions linked to Code grounds, such as disability, race or sex, to assess an individual's ability to perform the job duties. For example, a position that requires child care workers to be women is unfair to men who are also qualified for the position
- state that the job must be performed only in a certain way even though reasonable alternatives may exist.
Example: A human rights tribunal found that an employer discriminated against a female employee when it refused to employ her in a section of the company that processed certain gases. The employer defended its action on the basis that, from time to time, accidental emissions may be harmful to women of child-bearing age or to a fetus. The tribunal found that the risk of harm to a fetus from the accidental emission of the gas was minimal. As well, the scientific research did not support the company's concerns. The tribunal noted that any woman who knows she is pregnant, or who intends to become pregnant, could be transferred from this section until after she has given birth.
b) Identify and clearly describe essential requirements
Having a clearly defined job description and an understanding of the essential requirements of the job provides a solid basis for designing rules and standards, providing accommodation, assessing the performance of applicants and employees, and making decisions on hiring, promotions, discipline and termination. Organizations that have not defined the essential duties of a position, provided required accommodation and individually assessed ability to perform the essential duties will have difficulty defending themselves if a human rights complaint is filed.
This is because section 17 of the Code says that the right to equal treatment is not infringed when a person is treated differently because she or he is incapable of carrying out the essential duties or requirements of the position because of disability, after the person has been accommodated short of undue hardship.
The employee has a duty to co-operate with the employer in investigating options for accommodation. The employer must go beyond determining the employee’s limitations and focus on the duties that the employee is able to perform.
Employers are expected to re-assign non-essential tasks and to accommodate to the point of undue hardship related to the essential duties of the position. If, after being accommodated to the point of undue hardship, the person still cannot meet the essential requirements, it is not discriminatory for the employee to be re-assigned to another position that better meets his or her accommodation needs.
A job may contain many elements, some of which are essential to doing the job, and others that are ideal or preferable, but not essential. The best practice is to list essential duties in a job description, and clearly state them when advertising the job. When developing a job description, it is prudent to consider the necessary or essential physical requirements, including physical demands, and provide this information to job applicants. The essential requirements must be determined objectively and not be designed to avoid the principles contained in the Code. Employers should be able to show why a certain task is either essential or non-essential to a job.
With time, a job can change. This may result in adding new responsibilities that may be either essential or non-essential. When preparing for a hiring process, an employer may consider the following questions:
- Is the job description current or does it need to be updated?
- Does the job description accurately reflect the needs and expectations of the employer?
- Which are essential requirements and which are non-essential?
When assessing whether a particular task or duty is essential, an employer can consider:
- How often is the duty performed?
- How much time is spent on each duty?
- How does the duty fit with the others performed in the job?
- How would the job change if the duty were removed?
c) Think about stress when designing jobs
Experts estimate that stress contributes to 19% of absences from work and costs Canadian employers $3.5 billion each year.[39] Experts and researchers have identified that certain types of jobs are associated with higher levels of stress. This, combined with other stresses, can lead to disabilities or heighten the need for major Code-related accommodations that could have been avoided in other circumstances.
Example: An employee, whose mother is in a long-term care home, has difficulty balancing her care-giving responsibilities with her job. She has little control over her work tasks and is constantly being given rush assignments at the end of the day. Almost daily, she works a full day, goes to visit her mother and then works from home until late in the evening to finish her task assignments for the next day.
The employer’s position is that the office is too busy to allow her to cut back her hours. Employees are also discouraged from claiming overtime – the employer’s view is that employees who are doing overtime are just not productive enough during regular hours. The employee is a top performer but feels that her contributions are not valued and that she is not meeting expectations. She becomes increasingly stressed by the rising workload and lack of accommodation. This is magnified by the total absence of recognition or appreciation. She goes off on an extended sick leave.
While some jobs are necessarily more stressful than others, an employer can take steps to eliminate unnecessary stresses when designing a job, or put in place measures to help employees deal with stresses caused by the job – see Section IV-8e(viii) – “Stress-related accommodation requests.”
Research summarized by Mental Health Works shows that excessive stress may arise in jobs with the following work conditions:[40]
- high demand/low control jobs
- the employee has constant imposed deadlines over a long period
- the employee has limited control over how their day-to-day work is organized
- deadlines and limited control can lead to increased disability claims due to double the rate of heart and cardiovascular problems, higher rates of anxiety, depression and poor morale, higher drug and alcohol use, and increased vulnerability to infectious diseases
- high effort/low reward jobs
- require high physical or mental effort.
- offer little pay, status, financial gain or career enhancement
- can lead to triple the rate of cardiovascular problems, higher rates of depression, anxiety and conflict-related problems
- jobs that are both high demand/low control and high effort/low reward can lead to:
- double the risk of death from heart disease
- high cholesterol and body mass index
- higher incidence of back pain (three times that of high control/high reward conditions)
- higher incidence of repetitive stress injuries (could be up to 150%)
- over five times the normal rate of colorectal cancer (when combined with other workplace stressors)
- accidents on the job (directly or indirectly)
- increased conflict between co-workers.
d) Potentially discriminatory requirements
This section shows requirements that could lead to discrimination claims, and that should not be included in a hiring process without careful thought:
Functional fitness assessments: Applicants should not have to undergo a fitness assessment unless:
- the requirement is made in good faith and inclusively designed
- it is rationally connected to performing the essential duties of a job
- accommodation is built into the assessment.
Testing and simulations: Any tests and simulations should be reasonable and bona fide to be reliable indicators of job performance. For example, psychometric and psychological testing may favour the dominant culture. A written test for a job that does not need writing skills may screen out persons who speak English or French as a second language.
Non-essential physical demands: No matter what the job, every job has a physical aspect to it. Activity may range from something sedentary, like sitting at a desk and looking at a computer screen, to something very physically active, like driving a delivery truck and lifting heavy packages. Physical demands that are not essential should not be included in a job description or used as a basis for evaluating applicants.
Example: A company is looking for computer salespersons. The job description states that the person who fills the position must be able to lift 20 kilograms, the weight of the computers and related equipment. If the person is being hired as a computer salesperson, knowledge of computers and information technology is essential, but the ability to lift and deliver computers would likely not be essential and should not be included in the job description or used to screen out applicants.
Requirement to have a driver’s licence: A driver's licence contains personal information about a person such as age or disability. This could allow the employer to assess applicants according to a prohibited ground of discrimination. Employers should identify the jobs where driving is an essential requirement and make sure this is included in the job description.
Language and fluency: A job description that requires a certain level of fluency in English or any another language, or prohibits an accent, may be discriminatory if these are not bona fide requirements for performing the job.
When an employer identifies "proficiency" in a language as a requirement, it must be reasonable and bona fide. It must meet the test set out above. The requirement must focus on the particular language needed in the job, and not on the place of origin, ancestry, ethnic origin or race of candidates for the job.
Example: An immigrant settlement agency that serves persons from South Asian countries needs support workers. Most of its clients have recently arrived in Canada. Fluency in one or more South Asian languages as well as English or French would likely be considered a bona fide job requirement.
There may be an exception under subsection 24(1)(a) of the Code if the employer is a special interest organization.
“Canadian experience:” A requirement for Canadian experience may limit applications from recent immigrants, and could result in discrimination on the basis of race, place of origin or ethnic origin. All prior experience should be assessed, regardless of where it was obtained. In many cases, there are easy ways to assess a person's skills and abilities without having to contact a Canadian reference or insist on Canadian experience.
Example: An employer is looking for a typist/receptionist. Even if the person received their training in another country, there are several options available to verify skills, including standardized testing (typing tests, for example), letters of reference or probationary periods.
Inflated job requirements: Inflated job requirements pose discriminatory barriers for racialized applicants and others such as people with disabilities. An example is requiring a university degree when a high school diploma would do.
Specifying desirable personality traits: This approach can screen out or discourage persons identified by the Code. In some cases, the terms used may be seen as euphemisms for criteria that would be prohibited under the Code. For example, stating that sales people must be “aggressive” could screen out racialized women, and saying people must demonstrate “career potential” could screen out older applicants.
The employer should avoid stating that an applicant has to be in “good physical condition” to be successful, even if there is a bona fide requirement that an applicant take a fitness assessment.
Frequent travel: If employees have major caregiving responsibilities, their ability to travel regularly or extensively may be limited. When travel is included in a job description, it must be an essential duty that is a bona fide requirement. When it is not, employees should not be denied opportunities because their caregiving responsibilities prevent them from regular or extensive travel. When travel is an essential job duty, the employer would be expected to accommodate the family-status needs of employees.
Recent graduates or students: A requirement that an applicant be a recent graduate or a student may limit applications from older workers. This may amount to discrimination on the basis of age, unless such requirements are bona fide, connected to a special program or a Code exemption applies.
Citizenship requirements: Section 16 of the Code allows an employer to discriminate based on citizenship in three very specific situations:
- when citizenship is a qualification or requirement imposed or authorized by law
- when the requirement for Canadian citizenship or permanent residency in Canada has been adopted to foster and develop participation in cultural, educational, trade union or athletic activities by Canadian citizens or permanent residents
- when the employer imposes a preference that the chief or senior executives be, or intend to become, Canadian citizens.
The employer should include any of these citizenship requirements in the job description to avoid any misunderstandings by applicants. But see “Citizenship” in the section on grounds.
[38] In Meiorin, supra note 6, the Court considered whether a fitness test, which was found to indirectly discriminate against women, was a bona fide occupational requirement for a forest firefighter.
[39] Statistics summarized by Joan Burton, Industrial Accident Prevention Association, The Business Case for a Healthy Workplace, online: www.iapa.ca/pdf/fd_business_case_healthy_workplace.pdf.
[40] Mental Health Works, online: www.mentalhealthworks.ca/employers/faq/question3.asp