CHAPTER-3
Foundations of Recruitment
and Selection II- Legal Issues
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Learning Outcomes
• After reading this chapter, you should be
able to:
– discuss the major legal issues affecting
recruitment and selection.
– identify how relevant human rights and
employment equity legislation and policies
affect recruitment and selection in your
organization.
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Learning Outcomes
• After reading this chapter, you should be
able to:
– understand and describe how legal concerns
affect the practice of recruitment and selection.
– discuss the key legal concepts that have had an
impact on recruitment and selection in Canada.
– apply the basic concepts and principles
discussed to the development of recruitment
and selection systems that meet legal
requirements.
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Part I:
Legal Requirements Affecting
Recruitment And Selection
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Legal Sources that Affect
Recruitment and Selection
• Four legal sources affect Canadian
employment practices in recruitment and
selection:
– constitutional law
– human rights law
– employment equity legislation
– labour law, employment standards, and privacy
legislation
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Constitutional Law
• The Constitution of Canada consists of a series of acts and orders
passed since 1867 by the British and Canadian Parliaments. These
separate acts and orders begin with the British North America Act
of 1867 and end with the Constitution Act of 1982. Sections 1 to
34 of Part 1 of the Constitution Act of 1982 are called the Canadian
Charter of Rights and Freedoms.
• The Constitution, taken as a whole, serves as the supreme law of
Canada, as stated in subsection 52(1) of the Constitution Act of
1982:
• 52. (1) The Constitution of Canada is the supreme law of Canada
and any law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no force or
effect.
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Constitutional Law
A section of the Constitution often cited in employment law is section 15
of the
Canadian Charter of Rights and Freedoms, which lays out the principle of
equality rights:
15. (1) Every individual is equal before and under the law and has the
right to the equal protection and equal benefit 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.
(2) 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.
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Constitutional Law
• Supreme law of Canada
• Has a pervasive impact on employment
practices and all spheres of Canadian society
• Does not directly affect everyday recruitment
and selection activities, only affects
recruitment and selection activities when they
are challenged at high levels
• Not all legal requirements are the same (see
Recruitment and Selection Notebook 3.1)
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Human Rights Law
• Prohibits discrimination in employment and in
the provision of goods and services
– human rights legislation in all jurisdictions is enforced
through human rights commissions or tribunals that
have the legislated power to undertake actions that
may be necessary to eliminate discrimination
– all Canadian jurisdictions prohibit discrimination on
the grounds of disability, sex, race, colour, ethnic
origin, age, creed or religion, marital status, and
sexual orientation
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Human Rights Law:
Discrimination
• Discrimination
– in employment, any refusal to employ or to
continue to employ any person, or to adversely
affect the employment conditions of any current
employee, based on that individual’s membership
in a protected group.
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Human Rights Law:
Prohibited Grounds of Discrimination
• Prohibited grounds of discrimination vary
among jurisdictions.
• Table 3.1 compares prohibited grounds of
discrimination across federal, provincial, and
territorial jurisdictions, listing prohibited
grounds of employment discrimination across
these jurisdictions.
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Prohibited Grounds
• Human Rights Law
– Prohibited grounds of employment discrimination on
which all jurisdictions agree
• race
• colour
• ethnic origin
• religion or creed
• age
• sex
• marital status
• disability
• sexual orientation
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Figure 3.1
Proportion of Complaints Received in 2019
by Ground of Discrimination
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Employment Equity Legislation
• 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
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Designated and Protected Groups
• Designated groups
– women, Aboriginals, members of a visible
minority, and persons with disabilities
• 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
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Labour Law
• These laws grant certain employment rights to
both employers and employees, but also
impose a wide range of employment
responsibilities and obligations
• Federal and provincial labour laws stipulate
the rights of employees to organize trade
unions and to bargain collective agreements
with employers
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Employment Standards Laws
• Federal and provincial or territorial
employment standards laws provide rules for
such minimums as age of employment,
standard hours of work, minimum wages,
statutory holidays, vacations, work leaves, and
termination of employment
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Employment Standards
• Requires that individuals give consent for the
collection, use, and disclosure of their
personal information and that the collection,
use, and disclosure is reasonable in the
circumstances
• The Canadian Privacy Act governs the
collection, use, and disclosure of any personal
information by the federal government
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Privacy Legislation
• Personal Information Protection and
Electronic Documents Act (PIPEDA)
– specifies how private enterprises under federal
jurisdiction collect, use, disclose, store, and
destroy personal information in the course of
commercial activities across Canada.
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Privacy Concerns and the Internet
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Part II:
Key Legal Concepts in
Recruitment and Selection
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Undue Hardship
• 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, but
this is a high standard to reach
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Discrimination and
Direct Discrimination
• Discrimination
– In employment, any refusal to employ or to
continue to employ any person, or to adversely
affect any current employee, on the basis of that
individual’s membership in a protected group
• Direct discrimination
– occurs where an employer adopts a practice or
rule that, on its face, discriminates on a prohibited
ground
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Adverse Effect Discrimination
• Adverse effect discrimination (or 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
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Adverse Impact
• Adverse impact
– occurs when the selection rate for a protected
group is lower than that for the relevant
comparison group
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Workplace Discrimination
• Workplace Discrimination in the United States
– the primary federal legislation governing workplace
discrimination is the Equal Employment Opportunity
(EEO) Act
– one of the most significant differences between
Canadian and U.S. legislation is the incorporation of
section 15(2) into the Canadian Charter of Rights and
Freedoms, which states that programs designed to
ameliorate discrimination by favouring disadvantaged
groups are not, themselves, discriminatory
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Meiorin Decision
• Direct and Adverse Effect Discrimination
– The Meiorin court decision resulted in legislation
allowing employers to defend a discriminatory
policy or practice as a BFOR only if there is a good
reason for it based on the employer’s need to
“engage and retain efficient employees.”
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The Meiorin Case
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BFOR
• Bona Fide Occupational Requirement (BFOR)
– procedure used to defend a discriminatory
employment practice or policy on the grounds
that the policy or practice was adopted in an
honest and good faith belief that it was reasonably
necessary to assure the efficient and economical
performance of the job without endangering
employees or the general public.
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Reasonable Accommodation
Slide 1 of 2
• Reasonable Accommodation
– the concept of reasonable accommodation is
incorporated into the concept of a BFOR
– where discrimination has occurred, the employer
is under a duty to accommodate the complainant,
short of undue hardship
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Reasonable Accommodation
Slide 2 of 2
• The Meiorin test is the standard under which
all workplace practices, including selection
testing, constitute BFORs
• Courts, tribunals, and arbitrators use this test
in determining whether a workplace practice
can be considered to be a BFOR when
considering whether those practices
constitute either adverse or direct
discrimination against individuals or groups
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Individual Accommodation
Slide 1 of 2
• Individual Accommodation
– recent rulings make it necessary for employers to
accommodate candidates with disabilities, even if
the person is the only one with that disability
applying for the job
– employers can no longer apply BFOR as a general
policy if it disproportionately excludes members of
protected groups, especially those with disabilities
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Individual Accommodation
Slide 2 of 2
• Individual Accommodation
– to establish a BFOR, an employer must
successfully argue that accommodating the needs
of the adversely affected person would produce
undue hardship for the organization
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Reasonable Alternative
• If a certain selection test is used and shows adverse
impact, HRTs usually ask employers to prove there
wasn’t another test that could have been reasonably
used.
– If there is a test, why was it not employed?
– Could standards reflective of group or individual
differences have been established?
– Is there a way to do the job that is less discriminatory
while still accomplishing the employer’s legitimate
purpose?
– Was there undue burden on applicants?
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Balancing The Competing Interests
Of Safety And Human Rights
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Sufficient Risk
Sufficient risk
As part of a BFOR defence, 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.
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Sufficient Risk
• One area where direct discrimination might still happen with some
regularity is in the area of physical or mental disability.
• For example, a hospital employer might screen out from the hiring
process all people with HIV or with AIDS. The concern of the
employer would probably centre on the safety of patients during
use of invasive techniques (such as injections by syringe). If the
hospital did intentionally exclude all persons with HIV/AIDS
during selection, then the employer would have to establish a
BFOR and show through the use of objective data that (1) people
with HIV/AIDS are a sufficient safety risk; (2) all persons with
HIV/AIDS present a safety risk; (3) individual testing of applicants
with HIV/AIDS is impossible or impractical; and (4) that these
individuals cannot be accommodated without imposing undue
hardship on the employer.
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Part III:
Practical Guidelines in
Nondiscriminatory R&S
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Practical Guidelines
Recruitment is a complex HR activity. This can
make it difficult to develop non-discriminatory
recruitment practices for protected group
members (in the case of human rights
legislation) or designated group members (in the
case of employment equity).
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Practical Guidelines
The scope of practices that must be considered is more
manageable if the success or failure of recruitment is traced
back to two main causes:
(1) the effectiveness or ineffectiveness of the organization
in contacting and communicating with target group
members and
(2) the positive or negative perceptions that target group
members hold about the organization. (It is irrelevant
whether those perceptions existed before the target group
members were recruited or whether they developed during
the recruiting process.)
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Outreach Recruiting
• A recruitment practice whereby 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 organization
– for example, the multinational software company,
SAP has an Autism at Work program that involves a
partnership between SAP and autism experts
directed at finding suitable candidates with autism
for existing jobs
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Legal Requirements
• Legal Requirements
– practitioners must ensure the proper
implementation of the system and monitor it over
time for any changes
– there are questions that practitioners can ask to
determine if the recruitment and selection
procedures they are using will meet with legal
acceptance
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Legal Requirements
1. Do the procedures I am using result in direct or indirect discrimination?
2. If a selection procedure I am using results in direct or indirect discrimination, can I establish
that it is a BFOR by showing that:
• I am adopting the selection procedure in good faith?
• the selection procedure cannot be replaced by one that is valid and has less
or little adverse impact?
• the selection procedure is related to job performance or safety?
• all of those people in the class excluded by the selection procedure are incapable
of performing the job or present a sufficient safety risk?
• individual testing of class members affected by the rule is impossible or
impractical?
• there are no reasonable alternatives to that testing?
• every attempt has been made to accommodate the unique capabilities and
inherent worth and dignity of every individual, up to the point of undue
hardship?
3. Is the selection procedure a valid predictor of job performance?
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Chapter Summary
Slide 1 of 3
• There are four main legal sources that
influence the practice of HR in
Canada:
1. constitutional law;
2. human rights legislation;
3. employment equity legislation
and policies; and
4. fundamental employment
legislation, including labour
law, employment standards,
and privacy legislation.
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Chapter Summary
Slide 2 of 3
• The impact of these laws and
policies mandates recruitment
and selection practices that do
not discriminate on the basis of
specific characteristics.
• Employment equity requires
proactive recruitment and
selection policies to increase the
number of women, visible
minorities, Aboriginal peoples,
and people with disabilities in
the workplace by removing
barriers to hiring them.
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Chapter Summary
Slide 3 of 3
• Given that recruitment and selection
are crucial HR activities for achieving
diversity, the principles of human
rights and employment equity are
fundamental.
• Labour codes and related legislation
will also affect recruitment and
selection practices in any Canadian
organizations with a unionized
workforce.
• Employers must also deal with issues
of employee privacy in the workplace.
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