Unit 7 - Hiring and Training Flashcards
The two main sources of law affecting the hiring process are:
- Common Law
- Human Rights Legislation - Employers cannot discriminate on prohibited grounds under the Ontario Human Rights Code (the Code)
What are the five key areas that allow for discrimination in the hiring process.
- Special interest organizations
- Bona Fide occupational requirements
- Nepotism
- Medical or personal attendants
- Affirmative action programs
Nepotism
The practice among those with power or influence of favoring relatives or friends, especially by giving them jobs.
An employer’s ability to permit or deny employment or promotion must be based on policy, rather than the will of the employer.
The Code does not require an employer to demonstrate that nepotism policies are a bona fide occupational requirement. Also does not require the employer to accommodate the negatively affected group.
The nepotism policies exemption only applies to the hiring process, and does not allow an employer to dismiss an employee on the basis of familial ties once they are hired.
Affirmative Action Programs
Refers to a set of policies and practices within a government or organization seeking to increase the representation of particular groups based on their gender, race, sexuality, creed or nationality in areas in which they are underrepresented such as education and employment.
Employers wishing to establish a special or affirmative action program must apply to the Ontario Human Rights Commission (OHRC) or approval status.
Bill 113
Bill 113 has standardized the manner in which police
records checks may be requested, and sets limits on
what can be disclosed.
It limits the disclosure of certain mental health
orders or records surrounding events for which one
has not been convicted.
When can necessary pre employment Medical
or Fitness Examinations be made in the hiring process?
Once a conditional offer has been made, an employer can require a pre employment medical or fitness examination. Tests must be job related and objectively necessary and appropriate.
The test must be performed on all candidates for the position.
Special Interest Organization
A religious, philanthropic, educational, fraternal, or social organization.
A special interest organization can be exempted from certain requirements.
• They must prove that they only, or mostly, serve people of a certain race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability.
Exempt from conforming to the Code in limited situations where the service preference is reasonable, and there are bona fide requirements for the position for which one wishes to apply.
Mercier (2000) Disability Case
The Supreme Court argued that there are many factors to consider with regard to disabilities, and that the protection against disabilities also includes perceived disabilities.
The principal focus when assessing whether there has been discrimination on the basis of disability should be on the effects of the preference or exclusion experienced by the person, rather than a focus on proof that the person has a disability and suffers physical limitations as a result.
The purpose of this case and of the Supreme Court’s decision is to prevent persons with disabilities from being socially shamed or treated unfairly as a result of their disability.
The Ontario Human Rights Commission’s guidelines state that the duty to accommodate involves three factors:
1) Individualization –> requires the employer to meet the individual needs of the employee requiring accommodation
2) Dignity –> Accommodation must not violate the employee’s right to privacy, confidentiality, comfort or freedom.
3) Inclusion –> Accommodation must create full participation of all individuals in the workplace. This principle removes discrimination by putting the concept of inclusion as a proactive goal for employers, identifying potential areas of exclusion before complaints materialize.
