3.6 Legal Concepts in Recruitment and Selection
Discrimination and the Law
The Canadian Human Rights Commission defines discrimination as an action or a decision that treats a person or a group detrimentally for their race, age, or disability. These reasons, also called grounds, are protected (Canadian Human Rights Commission, n.d.).
This is important as HR managers are responsible for making decisions about employees (e.g., hiring, evaluating, promoting, terminating, etc). Thus, they require a thorough understanding of how discrimination can occur in the workplace. We explain the two fundamental mechanisms by which discrimination can manifest: direct and indirect (systemic) and additional nuances regarding discrimination.
Direct Discrimination
Direct discrimination occurs when a decision is made based on one of the categories protected by the legislation. This form of discrimination is blatant and illegal.
A job posting states, “Only candidates under 30 need apply.” – Age discrimination.
A hiring manager says to a candidate, “We don’t think our conservative clients would be comfortable working with someone like you.” – Sexual Orientation discrimination.
As part of recruitment and selection, no statement may be made in advertising a job prohibiting or restricting members of a protected group from seeking that job. Application forms and interviews are also potential sources of discrimination. Sometimes, the information sought during interviews is irrelevant to the job and may let discriminatory elements affect the selection process.
Examples of Discriminatory Questions
As you already know, many interview questions would be considered discriminatory. Here are some examples:
- National origin. You cannot ask seemingly innocent questions like, “That’s a beautiful name. Where is your family from?” This could indicate national origin, which could result in bias. You cannot ask citizenship questions except if a candidate is legally allowed to work in Canada.
- Marital status. You can’t ask direct questions about marital status or children’s ages. An alternative may be to ask, “Do you have any restrictions on your ability to travel since this job requires 50 percent travel?”
- Disabilities. You may not directly ask if the person has disabilities or recent illnesses. You can ask if the candidate can perform the job functions with or without reasonable accommodations.
- Personal questions. Avoid asking personal questions, such as questions about social organizations or clubs, unless they relate to the job.
| Subject | Avoid Asking | Preferred | Comments |
|---|---|---|---|
| Name | about the name change: whether it was changed by court order, marriage, or other reason for the maiden name | Ask after selection if needed to check on previously held jobs or educational credentials | |
| Address | for addresses outside of Canada | Ask for the place and duration of the current or recent address | |
| Age | for birth certificates, baptismal records, or about age in general | Ask applicants if they are eligible to work under Canadian laws regarding age restrictions | If precise age is required for benefit plans or other legitimate purposes, it can be determined after selection |
| Sex | males or females to fill in different applications about pregnancy, childbearing plans, or childcare arrangements | Ask the applicant if the attendance requirements can be met | During the interview or after selection, the applicant, for purposes of courtesy, may be asked which of Dr., Mr., Mrs., Miss, or Ms. is preferred |
| Marital Status | whether the applicant is single, married, divorced, engaged, separated, widowed, or living common-law, whether the applicant’s spouse may be transferred about the spouse’s employment | If transfer or travel is part of the job, the applicant can be asked whether he or she can meet these requirements | Ask whether any circumstances might prevent the completion of a minimum service commitment. Information on dependents can be determined after selection if necessary |
| Family Status | about the number of children or dependents’ childcare arrangements | Ask if the applicant would be able to work the required hours and, where applicable, overtime | Contacts for emergencies and details on dependents can be determined after selection |
| National or Ethnic Origin | about birthplace, nationality of ancestors, spouse, or other relatives, whether born in Canada for proof of citizenship | Since those who are entitled to work in Canada must be citizens, permanent residents, or holders of valid work permits, applicants can be asked whether they are legally entitled to work in Canada | Documentation of eligibility to work (papers, visas, etc.) can be requested after selection |
| Military Service | about military service in other countries | Inquire about Canadian military service, where the law gives veterans employment preference. | |
| Language | about mother tongue where language skills were obtained | Ask if the applicant understands, reads, writes, or speaks the languages required for the job | Testing or scoring applicants for language proficiency is not permitted unless job-related |
| Race or Colour | any question related to race or colour, including colour of eyes, skin or hair | ||
| Photographs | for photo to be attached to applications or sent to the interviewer before the interview | Photos for security passes or company files can be taken after selection | |
| Religion | whether the applicant will work a specific religious holiday about religious affiliation, church membership, frequency of church attendance for references from clergy or religious leader | Explain the required work shift, asking whether such a schedule poses problems for the applicant | Reasonable accommodation of an employee’s religious beliefs is the employer’s duty |
| Height and Weight | No inquiry unless there is evidence they are genuine occupational requirements | ||
| Disability | for a list of all disabilities, limitations or health problems, whether the applicant drinks or uses drugs, whether the applicant has ever received psychiatric care or been hospitalized for emotional issues, whether the applicant has received worker’s compensation | The employer should:
|
A disability is only relevant to job ability if it:
|
| Medical Information | whether the applicant is currently under a physician’s care name or family doctor, whether the applicant is receiving counselling or therapy | Medical exams should be conducted after selection and only if an employee’s condition is related to job duties | Offers of employment can be made conditional on successful completion of a medical exam |
| Pardoned Conviction | whether the applicant has ever been convicted, whether the applicant has ever been arrested, whether the applicant has a criminal record | If bonding is a job requirement, ask whether the applicant is eligible | Inquiries about criminal records or convictions are discouraged unless related to job duties |
| Sexual Orientation | about the applicant’s sexual orientation | Contacts for emergencies and details on dependents can be determined after selection. | |
| References | The same restrictions apply to questions asked of applicants when asking for employment references. |
Indirect (or Adverse Effect) Discrimination
Indirect discrimination occurs when a criterion or practice has an unintended, negative impact on protected group members. The critical distinction here is that a policy or practice that appears neutral may disadvantage a protected group. This form of discrimination is much more subtle than direct discrimination; it is usually not intended.
Examples of Indirect Discrimination in Canada
- Recruiting primarily through employee referrals or alumni networks from certain universities can indirectly exclude candidates from diverse backgrounds who do not have access to these networks.
- A job requires candidates to have lived in Canada for a certain number of years, which could disadvantage recent immigrants who are otherwise qualified for the position.
- A job description includes a height or weight requirement that is not essential for job performance, potentially disadvantaging women or certain ethnic groups who may have different average physical characteristics.
Adverse Impact
The concept of adverse impact is closely related to adverse effect discrimination. An adverse impact is a substantially lower selection rate for a protected group in hiring, promotion, or other employment decisions than that of the comparator group.
We can quantitatively evaluate discrimination in our selection practices using the four-fifths or 80 percent rule. The rule states that a selection rate for any race, sex, or ethnic group less than four-fifths of the rate for the group with the highest rate could be regarded as an adverse impact. Adverse impact refers to employment practices that may appear neutral but have a discriminatory effect on a protected group. For example, assume 100 women and 500 men applied to be firefighters. Let’s say 20 of those women were hired, and 250 men were employed. To determine adverse impact based on the four-fifths rule, calculate the following:
- The selection rate for women: 20 percent
- The selection rate for men: 50 percent
- Then divide the highest selection rate: 0.20 ÷ 0.50 = 0.4
As 0.4, or 40 percent, is less than four-fifths, there may be an adverse impact on the selection process for firefighters.
The four-fifths rule is a way of measuring adverse impact in the selection processes of organizations. It works like this: assume your organization requires a cognitive test for employment. You set a test score of 70 as the rate of pass needed for the candidate to be considered for an interview. Based on our numbers, if 50 percent of men passed this test with a score of 70, then one would expect four-fifths of this rate – 40 percent – of women should also be able to pass the test. You might calculate it like this:
| Gender | Total who scored 70 or above | Total who took the test | Percent passed |
|---|---|---|---|
| Male | 52 | 62 | 84% |
| Female | 36 | 58 | 62% |
If you divide the total of males who scored above 70 by the total number who took the test, it shows the percentage of 84 percent who passed the test. If you divide the number of females who passed by the total number who took the test, you come up with 62 percent. Then divide 62 percent by 84 percent (62÷84 = 73.8%). The resulting 74 percent means that it is below the 80 percent or the four-fifths rule, and this test could be considered to have a disparate impact.
52÷62 = 84% of males who took the test passed the test
36÷58 = 62% of females who took the test passed the test
62÷84 = 73.8%, less than 80%, which could show disparate impact
“HRM and The Law” from Human Resources Management – Canadian Edition by Stéphane Brutus and Nora Baronian is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.—Modifications: Used section Discrimination and the Law, edited; Used section Direct Discrimination, edited, changed examples, added examples; Used section Indirect (systemic) Discrimination, edited, changed examples, added examples.
“Selection” from Human Resource Management by Saylor Academy is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 License, except where otherwise noted.—Modifications: Used section Chapter Case, first example only.
“3.2 Diversity Plans” from Human Resource Management by the University of Minnesota is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.—Modifications: Used section Recruitment and Selection, 4/5ths Rule.
