Chapter 3 Foundations of Recruitment and Selection II: Legal Issues HRM 3470 Week #4 May 30, 2016 Chapter 3 Foundations of Recruitment and Selection II: Legal Issues

The Big Questions(s) What are the main legal requirements that HR professionals need to recognize? How do these requirements affect recruitment and selection policies and practices? © 2013 by Nelson Education

Four Legal Sources Affecting Canadian Employment Practices Constitutional law Human rights legislation Employment equity Labour law, employment standards, and related legislation (See Notebook 3.1 text pp. 68-69) (We can also include Occupational Health and Safety and Workplace Safety and Insurance standards) © 2013 by Nelson Education

Constitutional Law Constitutional law: the Supreme Law of Canada Has a pervasive impact on employment practices, as it does on all spheres of Canadian Society Canadian Charter of Rights and Freedoms: © 2013 by Nelson Education

Constitutional Law (continued) NB: Section 15, subsection 1 of the Canadian Charter of Rights and Freedoms: every individual is equal before and under the law and has the right to the equal protection and equal benefits of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. Canadian Charter of Rights and Freedoms: © 2013 by Nelson Education

Constitutional Law (cont) NB Also: Section 15, subsection 2 of the Canadian Charter of Rights and Freedoms: Subsection 1 does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Canadian Charter of Rights and Freedoms: © 2013 by Nelson Education

Common Example of Subsection 2 Ryerson University is strongly committed to fostering diversity within our community. We welcome those who would contribute to the further diversification of our staff, our faculty and its scholarship including, but not limited to, women, visible minorities, Aboriginal people, persons with disabilities, and persons of any sexual orientation or gender identity. Please note that all qualified candidates are encouraged to apply but applications from Canadians and permanent residents will be given priority. Canadian Charter of Rights and Freedoms: © 2013 by Nelson Education

Human Rights Law Human rights legislation: prohibits discrimination in both employment and the provision of goods and services (e.g., rental housing, service in restaurants) Legislation generally establishes human rights commissions or tribunals to deal with complaints, including those involving employment discrimination © 2013 by Nelson Education

Human Rights Law Section 8 of the Canadian Human Rights Act refers to a “a prohibited ground of discrimination.” The following are the 16 grounds on which discrimination is prohibited in Ontario: Race, ancestry, place of origin, colour, ethnic origin, citizenship, creed (religion), sex (including pregnancy and childbirth), sexual orientation, mental or physical disability, perceived disability, age, marital status, family status, same-sex partnership status, pardoned conviction (record of offences) © 2013 by Nelson Education

Table 3.1 (p. 72) compares prohibited grounds of discrimination across federal, provincial, and territorial jurisdictions, listing 19 prohibited grounds of employment discrimination found across these jurisdictions. © 2013 by Nelson Education

Prohibited Grounds of Employment Discrimination (cont) © 2013 by Nelson Education

Prohibited Grounds of Employment Discrimination (cont) © 2013 by Nelson Education

Prohibited Grounds of Employment Discrimination (cont) © 2013 by Nelson Education

Prohibited Grounds of Employment Discrimination (cont) © 2013 by Nelson Education

Prohibited Grounds of Employment Discrimination (cont) © 2013 by Nelson Education

Employment Equity Legislation Employment equity: the elimination of discriminatory practices that prevent the entry or retention of members from designated groups in the workplace, and the elimination of unequal treatment in the workplace related to membership in a designated group (e.g., women, visible minorities, Aboriginal peoples, and people with disabilities) © 2013 by Nelson Education

Employment Equity Legislation (cont) Federal legislation requires Employment Equity programs: For all federally regulated employers with 100 or more employees, including banking, communications, inter-province and international transport, and all government departments © 2013 by Nelson Education

Employment Equity Legislation (cont) Federal Contractors Program requires any organization with more than 10 employees that does more than $200,000 of business with the federal government © 2013 by Nelson Education

Developing and Implementing and Employment Equity (EE) Plan Notebook 3 Developing and Implementing and Employment Equity (EE) Plan Notebook 3.2, p.75 Obtain support of senior management for the EE effort Conduct a survey to determine the present representation of designated groups in the organization’s internal work force Set future representation targets for designated groups based on availability of qualified workers in the labour market © 2013 by Nelson Education

Developing and Implementing and Employment Equity (EE) Plan (cont) Remove systemic employment barriers to increase representation for designated groups in the internal work force Monitor the changing composition of the internal work force over time Make necessary changes to the EE intervention to bring designated group representation up to future targets © 2013 by Nelson Education

Benefits of Implementing Employment Equity - see Notebook 3. 3, text p A work force representative of Canadian culture and diversity An increase in global competitiveness and productivity High employee morale and decreased absenteeism © 2013 by Nelson Education

Benefits of Implementing Employment Equity (cont) Amicable relationships with customers and clients Enhanced corporate reputation – being a solid corporate citizen Increased profitability and a better bottom line © 2013 by Nelson Education

“Best Practices” for Employment Equity - Notebook 3.3, text p. 77 Maintain an “open” or “no door” policy Advertise employment opportunities in publications and locations geared toward members of designated groups Celebrate specific cultural holidays such as National Aboriginal Day (June, 21) and International Day for the Elimination of Racial Discrimination (March 21) © 2013 by Nelson Education

“Best Practices” for Employment Equity (cont) Accommodate employees who need special help, especially those with disabilities, to ease integration in the workplace and make them feel comfortable Advertise and announce the achievement of a barrier-free workplace; emphasize accommodation and positive encouragement along with institution of diversity training and the use of other measures such as visual and hearing aides, coaches, etc. © 2013 by Nelson Education

Class Activity You are the President of your company. How would you encourage your managers to promote Employment Equity in their department? What key areas of the recruitment and selection process would you focus upon in order to ensure equity and diversity? © 2013 by Nelson Education

Labour Law Federal/Provincial labour laws: stipulate the rights of the employees to organize trade unions and to bargain collective agreements with employers Collective agreements: set out the conditions for unionized employees (e.g., Promotion, lateral transfer and demotion) © 2013 by Nelson Education

Employment Standards Employment standards: federal/provincial laws to regulate minimum age of employment, hours of work, minimum wages, statutory holidays, vacations, work leaves, and termination of employment © 2013 by Nelson Education

Key Legal Concepts in Recruitment and Selection – See Notebook 3. 4, P Direct discrimination: occurs where an employer adopts a practice or rule that, on its face, discriminates on a prohibited ground © 2013 by Nelson Education

Key Legal Concepts in Recruitment and Selection (cont) Indirect discrimination: occurs when an employer, in good faith, adopts a policy or practice for sound economic, or business reasons, but when it is applied to all employees it has an unintended, negative impact on members of a protected group © 2013 by Nelson Education

Key Legal Concepts in Recruitment and Selection (cont) Protected groups: those who have attributes that are defined as “prohibited grounds” for discrimination under the human rights act that applies to the employing organization Adverse impact: occurs when the selection rate for a protected group is lower than that for the relevant comparison group © 2013 by Nelson Education

Key Legal Concepts in Recruitment and Selection (cont) Bona fide occupational requirement (BFOR): requirement(s) that a person must possess to perform the essential components of a job in a safe, efficient, and reliable manner An employer must show that the practice or policy was adopted in an honest and good- faith belief that it was reasonably necessary to ensure the efficient and economical performance of the job without endangering employees or the general public Bona fide occupational requirement (BFOR) © 2013 by Nelson Education

The Meiorin Case – See Notebook 3.7, pp. 91-92 Discrimination based on merely descriptive evidence; i.e., averaging from overall performance to minimum standards No distinction made between test subjects, and therefore, no accounting for how this might effect data as it pertains to real life performance © 2013 by Nelson Education

The Meiorin Case (cont) What this means – See p. 93: The ‘Meiorin Test’ requires that employers justify a standard in 3 ways Standard is rationally connected to performance of the job Standard adopted in honest and good faith belief that it is necessary to fulfillment of legitimate work-related purpose © 2013 by Nelson Education

The Meiorin Case (cont) NB the standard is reasonably necessary to accomplishment of legitimate work- related tasks, which means it is impossible to accommodate individual employees sharing characteristics (physical, etc.) of the claimant without imposing undue hardship upon the employer © 2013 by Nelson Education

Reasonable Accommodation A concept incorporated into notion of a BFOR IN some cases, even when a BFOR has been established, the courts have argued that individuals must be accommodated where no undue hardship is caused an employer See 3.8, p. 96 © 2013 by Nelson Education

Reasonable Alternative Is also related to BFOR such that an employer must demonstrate that no reasonable or practical substitute exists for the discriminatory practice. Eg. Where there is a test in use that has adverse impact the employer must show there is no alternative test that has less adverse impact See Notebook 3.4, p. 97 © 2013 by Nelson Education

Key Legal Concepts in Recruitment and Selection (cont) Accommodation: the duty of an employer to put in place modifications to discriminatory employment practices or procedures to meet the needs of members of a protected group being affected by the employment practice or procedure © 2013 by Nelson Education

Key Legal Concepts in Recruitment and Selection (cont) Sufficient risk: an employer may argue that an occupational requirement that discriminates against a protected group is reasonably necessary to ensure that work will be performed successfully and in a manner that will not pose harm or danger to employees or the public © 2013 by Nelson Education

Key Legal Concepts in Recruitment and Selection (cont) Undue hardship: the limit beyond which employers and service providers are not expected to accommodate a member of a protected group Undue hardship usually occurs when an employer cannot bear the costs of the accommodation. © 2013 by Nelson Education

Key Legal Concepts in Recruitment and Selection (cont) Adverse effect discrimination: a situation where an employer, in good faith, adopts a policy or practice that has an unintended, negative impact on members of a protected group Employment Equity: the elimination of discriminatory practices and unequal treatment related to entry, retention, and treatment © 2013 by Nelson Education

Class Activity What does it mean to accommodate someone to the point of undue hardship? When can an apparently discriminatory selection practice by justified on the grounds of “sufficient risk”? How do you avoid asking questions that may trigger a claim of discrimination? © 2013 by Nelson Education

Outreach Recruiting Outreach recruiting: the employing organization makes a determined and persistent effort to make potential job applicants, including designated group members, aware of available positions within the employing organizations © 2013 by Nelson Education

Recruitment and Selection - See Notebook 3.5, p. 102 Effective Practices for Non-discriminatory Recruiting Post complete, objective, and specific information on all available jobs in a conspicuous spot Advertise job openings in media that are read, viewed, or listened to by protected or designated group members Train employment clerical staff and recruitment officers in outreach recruiting Recruitment and Selection Notebook 3.5 (p. 98) presents a summary of effective and ineffective recruiting practices. They provide some practical guidance on what to do and what not to do when setting up and running recruitment programs that will meet legal requirements. © 2013 by Nelson Education

Recruitment and Selection Notebook 3.5 (cont) Base selection criteria on bona fide occupational requirements Use opportunities to visually present protected or designated group members in positive employment roles Establish networks with community groups from which protected or designated group members are drawn Set and advertise objectively determined selection criteria for the job © 2013 by Nelson Education

Recruitment and Selection Notebook 3.5 (cont) Ineffective Practices for Non-discriminatory Recruiting Permit receptionists and recruiters in employment offices to “pre-screen” applicants on the basis of informal criteria (e.g., appearance, dress) Rely on word-of-mouth advertising Post job advertisements only in-house © 2013 by Nelson Education

Recruitment and Selection Notebook 3.5 (cont) Rely solely on seniority when promoting employees without regard for meeting the qualifications need for the position Allow each recruiter to use and communicate idiosyncratic criteria for selecting among job applicants Categorize and stream job applicants based on stereotyped assumptions about protected or designated group membership (e.g., that women are not physically strong enough for certain work) © 2013 by Nelson Education

Summary The work force is becoming increasingly diverse with regard to race, gender, and disabilities It is imperative that HR professionals respect diversity, human rights, and employment equity © 2013 by Nelson Education

Summary (cont) There are four main legal sources: constitutional law, human rights legislation, employment equity, and labour law and employment standards © 2013 by Nelson Education

Summary (cont) Not only adopt proper process but ensure effective implementation and monitor and test according to a valid schedule NB: Table 3.3 in the textbook, pp. 84-86, regarding questions appropriate to establishing legal compliance EDUCATE management through internal programs © 2013 by Nelson Education

Summary (cont) Remember!! “The best defense is a selection system that meets the validity and reliability requirements outlined in chapter 2” and accords with the legislation regarding rights, employment, labour relations, and health and safety © 2013 by Nelson Education

Questions? © 2013 by Nelson Education