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Human Rights Law and Recruitment Practices: Does this apply to recruitment agencies?

Whitten and Lublin | Feb 27, 2018

Hiring practices that have a discriminatory effect upon protected grounds under the human rights law are prohibited. Protected grounds include, but are not limited to, gender, family status, religion, creed, race and so forth. The only exception is if the discriminatory effect is a bona fide occupational requirement. In other words, if the hiring practice has a discriminatory effect but is necessary to screen for essential duties/tasks that are required for the job, then the practices will be permissible. For instance, if a female security guard is needed in order to perform same-gender body searches, hiring practices that eliminate male applicants would qualify as a bona fide occupational requirement and therefore permissible.

Although recruitment agencies are not directly hiring employees for their own organization, human rights law does apply in the same way it would apply to employers recruiting for their own businesses. Furthermore, employers are expressly prohibited from using employment agencies in order to hire based on preference related to a prohibited ground of discrimination. This relates to overt discriminatory criteria or criteria that have an unintended discriminatory effect. Simplified, it is the outcome that practices in the hiring process create that are the focus of human rights law.

For instance, take an example of an employment agency hiring a customer service representative for a business located in an ethnically diverse town. Selecting applicants based on their ability to speak other languages would be permissible. However, hiring based on candidates belonging to a specific group linked to a prohibited ground of discrimination such as race or religion would not be permissible. Employment agencies, therefore, must be careful when assessing candidates based on ‘fit’. This may have an inadvertent discriminatory effect. When assessing candidates, it is advisable for hiring methods to be selected based on which traits are needed to perform the essential duties of the job.