Chapter3 - Foundations Of Recruitment And Selection: Legal Issues

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Discrimination

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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. All Canadian jurisdictions prohibit discrimination at least on the basis of race or colour, religion or creed, age, sex, marital status, and physical or mental disability

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Employment Equity

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The elimination of discriminatory practices that prevent the entry or retention of members from designated groups in the workplaces, and the elimination of unequal treatment in the workplace related to membership in a designated group

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Adverse Effect Discrimination

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Refers to 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

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Adverse Impact

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Occurs when the selection rate for a protected group is lower than that for the relevant comparison group

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Bona Fide Occupational Requirement (BFOR)

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A 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. BFORs are sometimes referred to as bona fide occupational qualifications (BFOQs)

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Accommodation

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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. As part of a BFOR defence, an employer must demonstrate that such accommodation is impossible to achieve without incurring undue hardship in terms of the organization's expense or operations

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Sufficient risk

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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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Outreach recruiting

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A recruitment practice where 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

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Major legal issues affecting recruitment and selection

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Constitutional Law: Supreme Law of Canada

Human Rights Law: Discrimination, Employment

Employment Equity: Federal employment equity

Labour Law, Employment Standards & related legislation: Rights, responsibilities, and obligations surrounding employment

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Human rights and employment equity legislation and policies that affect recruitment and selection

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Canadian Human Rights Act: depends on jurisdiction; on grounds of race or colour, religion or creed, age, sex, marital status, and disability

EE Legislation: For large organizations or large industries; protects designated groups

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Describe how legal concerns affect the practice of recruitment and selection

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Direct discrimination (meaning to)

Adverse effect discrimination (not meaning to)

Adverse impact (selection rate for dg is low)

Bona Fide Occupational Requirement (defend a discriminatory policy for employer's needs)

Reasonable Accommodation (meet needs)

Individual Accommodation (Once BFOR, not required to provide individual accommodation, unless no undue hardship)

Reasonable Alternative (if substitute exists)

Sufficient Risk (BFOR defence - about safety)

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The key legal concepts that have had an impact on recruitment and selection in this country

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Action travail des femmes vs. Canadian National:

Quebec women's group; Human Rights; representation of women for CN Rail

Andrews vs. Treasury Board and Dept. of Transport:

Human Rights; hearing test for Coast Guard; issues of the validity and reliability of test and grounds for BFOR

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Use concepts and principles to develop recruitment and selection systems that meet legal requirements

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Recruitment issues:

1) effectiveness in contact with target group members

2) perceptions that target group hold about org.

Ask three things:

1) is the procedure discriminatory or indirectly?

2) If yes to 1, can I establish a BFOR?

3) Is selection procedure a valid predictor of job performance?

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Constitutional Law

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Canadian Charter of Rights and Freedoms

Private person and branch of government

Deals with discrimination

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Human Rights Legislation

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Federal and provincial

Prohibits discrimination in employment

Applies to organizations within jurisdiction

Canadian Human Rights Act

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Employment Equity Legislation

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Federal

Federally regulated employers with 100 or more employees and others (police, banking industry) set up and operate EE programs

Human resource activities are required to ensure equality

Protects designated groups

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Labour Law, Employment Standards, and related legislation

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Trade unions and collective bargaining

Federal and provincial employment standards laws regulate hours of work, holiday, minimum wage etc.

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Ways to promote nondiscriminatory recruiting

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Criteria for jobs is objective

Network with community groups from protected groups

Outreach recruiting

Visually present designated groups in marketing

Advertise where designated groups will see