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Appendix – Workplace policies, practices and decision-making processes and systemic discrimination

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There are many tools available to assist employers in engaging in employment systems reviews to identify systemic barriers to racialized persons as well as others identified by Code grounds such as women and employees with disabilities.

The following is a non-exhaustive summary of workplace policies, practices and decision-making processes that can lead to systemic discrimination:[161]

Recruitment, selection and hiring

In a best-case scenario, racialized persons would be hired at a rate that reflects their representation in the qualified external workforce. However, in many situations this is not the reality. Employers who do not have a representative workforce may cite the failure of racialized persons to apply for the jobs, or the fact that the jobs were given to the most qualified candidate who happened not to be a racialized individual. In some cases the above explanations will hold true. However, in others it is the recruitment, selection and hiring process itself that is impeding access to employment opportunities. Recruitment methods have a strong influence on the pool of candidates available to the employer. Moreover, some policies and practices tend to inappropriately screen out racialized persons, making them seem unqualified for the job. The following is a list of common barriers that can result in systemic discrimination and best practices to avoid systemic racial discrimination.


Best practices

Use of personal networks (e.g., the recruiter’s hockey team), social relationships (e.g., friendships) and word-of-mouth referrals to recruit for vacancies. These types of informal processes tend to exclude those who do not share the same ethno/racial characteristics as the recruiter.

Formal job postings, which clearly describe the position and qualifications, are widely circulated, e.g., through ads placed in newspapers, internet web sites and through the use of employment agencies, so that they can readily come to the attention of racialized persons.


Some employers who are actively seeking to increase their diversity specifically advertise in ethno/racial newspapers. Others undertake outreach initiatives and go to places with a high representation of racialized persons to encourage applications from these individuals.

Staffing decisions based on informal processes are much more likely to lead to subconsciously biased decision-making. For example, conducting an interview by chatting with the applicant to see if he or she shares similar interests and will “fit” into the organizational culture may present a barrier for persons who are or appear different than the dominant norm in the workplace.

Use of formal interviews conducted by multiple-person interview panels that use preset questions and score the answers against a pre-determined answer guide is a fair process that focuses on the ability to perform the essential duties of the job. Ideally, an interview panel should reflect the diversity available in the organization. The questions asked should be tailored to the objective requirements of the job, and not be based on subjective considerations such as whether the person exhibits “confidence” or is “suitable.” The employer should be prepared to explain why a particular candidate was chosen. Written records from the interview and the entire job competition should be kept for at least one year if no complaint about the process is made, and longer if an application to the Tribunal is filed (until final resolution of the application).

Inflated job requirements (e.g., a Masters degree when a Bachelors is all that is really required for the job), “Canadian experience” and specifying desirable personality traits, e.g., “aggressiveness” can screen out or discourage racialized persons.

Job requirements should be reasonable and bona fide (see discussion of bona fide requirements). All prior experience should be assessed, regardless of where it was obtained. Culturally neutral qualifications, e.g., the ability to plan a project and complete it to required timelines, should be sought.

Testing 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 require written skills may screen out persons for whom English or French are a second language.

Testing should only be administered after a conditional offer of employment is made. It should only be used where the test can be shown by the employer to be a reasonable and bona fide method of assessing an applicant’s ability to do the job. Testing that assesses personal interests, attitudes and values should be avoided altogether or, if legitimately required for assessing ability to perform a job, should be used with great care to ensure it does not favour certain cultures.

Training and development

Training and development is integral to an employee’s performance in the current job as well as to qualify an employee for future opportunities. The ability to engage in continuous learning is also a significant factor for employee morale. Some training and development practices may exclude racialized employees. This has a direct impact on their careers, especially their upward mobility within the organization. It is prudent for organizations to monitor whether racialized persons are participating in training and development opportunities at the same rate as other employees and to address any differences.


Best practices

Training opportunities that are limited to senior employees may exclude racialized persons who may tend to be concentrated in lower level positions. In other cases, training for those at lower levels may be focused on current job skills, while training for more senior level employees may prepare them for promotion.

Organizations should make appropriate training available to all employees. Training should enhance current job skills as well as prepare employees for different or more advanced jobs.

Informing employees of training opportunities in an informal manner such as word of mouth or selecting employees for training based on the discretion of supervisors can result in discrimination.[162]

Training information needs to be widely disseminated through formal means such as e-mails, memos and posting on bulletin boards so it can reach all staff. Employers should allow employees to nominate themselves for training or should encourage all employees to seek out training, instead of selecting some for these opportunities. Fair, objective and clearly articulated criteria for deciding who receives the training should be used.

Lack of appropriate mentoring has been identified as a major barrier to training and development on the job. Informal mentoring that has managers selecting employees to “take under their wing” can result in racialized persons being left out.

Formal mentoring programs can ensure that all employees receive mentorship. In addition, participation of senior racialized persons in mentoring programs should be encouraged to provide role models.

In an organization that does not provide training in anti-racism and human rights, managers may be unaware of what constitutes discrimination or harassment and how barriers operate to exclude people.

Ongoing training in human rights and anti-racism should be an integral part of training for all employees, but particularly those who act in a supervisory capacity. It should be made clear that human rights are part of the organization’s culture and goals and that the training is not simply “window dressing” to comply with human rights laws.

Promotion and advancement

Studies on employment equity consistently show that racialized persons are still largely concentrated in lower level positions within organizations and that upward mobility continues to be a problem. This is reflected in the number of human rights complaints that relate to promotion and advancement. It is therefore important for organizations to be aware of how systems for promotion and advancement may result in obstacles for career progression. Some of the barriers and best practices in hiring (for example, in the interview process) are also applicable to promotions. And, as with all other decision-making, the use of informal guidelines rather than written or circulated policies is likely to attract concerns, even more so if informal approaches are applied inconsistently.[163]


Best practices

Acting assignments as a stepping-stone to promotion can result in significant barriers if the process for awarding acting positions is informal, as is often the case. Even where there is a formal process for awarding acting assignments, an employer must be careful to ensure that all employees are equally aware of these opportunities.[164]

Acting assignments are awarded through a formal process that includes circulating information about acting opportunities to all eligible staff, using a clearly set out process for selection that is based on objective criteria such as a written test, a formal interview and written performance appraisals.

Organizations that rely on management identifying people who are “promotable,” approaching certain employees to encourage them to bid for higher-level jobs, or assisting a favourite employee prepare for the selection process run the risk of human rights complaints.

Opportunities to move up in an organization should be openly publicized with the pre-requisites for eligibility and the process that will be used to select the successful candidate clearly identified. Moreover, as employees tend to watch for signals from management that if they bid for a higher-level position, they will be given fair consideration, it is therefore prudent not to encourage only certain employees to apply. Of course, any assistance with the process (for example, mock interviews, background reading materials, etc.) should be provided on an equal basis to all candidates.

Performance appraisals and progressive performance management are important tools for avoiding issues of discrimination. However, it is also a good idea for organizations to be aware that in some instances they can pose a barrier. For example, some performance evaluation systems have the employee rate him or herself and then discuss this with the manager. This may affect some racialized persons, due to past experiences of discrimination or to cultural differences in selling oneself. As well, certain appraisals can inadvertently have an impact on an employee later seeking promotion. For example, emphasizing an employee’s “ability to follow instructions” may pose a barrier to a promotion where “ability to take initiative” is being sought.

All employees should be measured against the same criteria. Managers should be sensitive to whether the performance appraisal methodology or the specific evaluation given could be having an unintentional adverse impact.

The clustering or concentration of racialized persons in certain jobs or categories, such as technical positions, can result in dead-ends to advancement, particularly into management. This can be compounded where subjective criteria, such as “communication skills” are emphasized in assessing suitability for a promotion.

Persons with strong technical skills should have the same opportunity to demonstrate the skills for other jobs. If necessary, training should be made available to bridge between technical and other jobs. An organization should acknowledge that there is more than one way to perform a job successfully and that requirements like “communication skills” may result in culturally non-neutral criteria being applied.

Retention and termination

A barrier-free workplace will help reduce the turnover rate for racialized employees. In addition, appropriate procedures contribute to fewer human rights complaints arising from layoff, disciplinary action and termination.


Best practices

Racialized employees may leave an organization for reasons related to discrimination, harassment or perceived unfairness.

Organizations should have in place anti-discrimination and anti-harassment policies, including a mechanism to address any complaints. In addition, exit interviews can assist in determining whether human rights considerations are a factor in employees leaving.

Undefined policies for discipline or uneven application of discipline are a common basis for human rights complaints. Similarly, layoff and termination decisions that are not based on clearly defined, job-related, objective criteria are problematic.

An organization that has a well-documented progressive performance management process in place and that applies it evenly to all staff is engaging in good human resources practices as well as avoiding human rights concerns. If termination becomes necessary, this organization is better placed to demonstrate a legitimate basis for the termination.

[161] See also the Commission’s publication Human Rights at Work which explains the types of questions that are and are not permitted at various stages in the recruitment process, Human Resources Professionals of Ontario & Ontario Human Rights Commission, Human Rights at Work (Toronto:
Government of Ontario, 2004) at 40-50.
[162] In NCARR, supra, note 121 a workplace questionnaire revealed that racial minorities had career development training experiences less often than White persons. There was also a difference as to how employees became aware of a training opportunity. White persons were more often informed of these opportunities by managers, whereas minorities tended to find out about these opportunities by using their own initiative. [at paras. 55 and 56] In Nelson, supra, note 85 the Tribunal found that officials of the Board of Education subjectively decided which teacher would be approved to take principal’s courses. Policy and Guidelines on Racism and Racial Discrimination Ontario Human Rights Commission 76 June 2005
[163] In NCARR, ibid. the Tribunal explained: 

Staffing decisions based on an informal process can present a barrier for promotion because, according to D. Weiner, the less formal the process, the less likely job qualifications will be set out in advance, will be assessed in a standard manner for all candidates and will allow for their recognition in candidates who are different from those who typically perform the job. [at para. 142]

[164] Human rights decisions have identified informal practices with regard to providing acting assignments as a barrier for racialized employees who may be less likely to be approached with these opportunities.
See for example, NCARR, ibid.

This informality can create barriers in that not all potentially qualified staff can seek the acting position. Further, the acting assignment provides valuable managerial experience and gives the person who is acting the appearance of being “right” for the jobs. [at para. 147]

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