Archive for February, 2010

Discriminating against ‘unreliable’ workers

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Interviewing for a job can be a nerve-wracking experience for job applicants. However, it seems employers have reason to get nervous as well about the whole process of weeding out the right candidates for a job opening.

If employers ask the wrong question in an interview or put the wrong thing in the job posting, they could face accusations of discrimination.

But where is the line drawn between discrimination and wanting the right person for the job? When employers have a job opening, often they will have an idea of the type of person they want in the position. And while they also need to ensure they give all candidates equal consideration for the position, there is the potential for it to get out of hand.

A recent case in the United Kingdom demonstrates how far things have gotten there in terms of discrimination against anyone in a job posting. A recruitment agency put together an advertisement for hospital workers that asked for reliable and hard-working people and submitted it to a job centre to be posted. However, the job centre told the agency it couldn’t specifically ask for people with those qualities because they could be sued for discriminating against unreliable and lazy people.

Another employer was told by the same job centre its posting for a domestic cleaner that required knowledge of English for health and safety reasons was discriminatory.

While these situations were in the U.K. and are extreme examples, they show employers need to be careful in wording their job postings. There have been many discrimination complaints filed in Canada over requirements and interview topics. A hospital in Brampton, Ont. — a community with many south Asian immigrants — was the subject of controversy a couple of years ago when it told a job applicant it was looking for people who spoke Hindi or Punjabi.

Employers can get into trouble even over what they think are legitimate qualifications if they directly or indirectly exclude a group protected under human rights legislation, unless they can prove the qualifications are necessary to do the job.

But going back the British cases, where is the line? Can an employer discriminate against someone based on intangibles? Grounds for discrimination seem to be expanding, with family status a big one these days. Will personality traits be next?

Tight deadlines can handcuff tribunals

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

 Timeliness is not often associated with the legal process.

Court backlogs, commission investigations and endless motions make it seem like even minor procedures last an eternity. Authorities often try to find ways to lessen the time it takes for a suit or complaint to be heard so the parties involved don’t have to wait months or even years for a resolution. In Ontario, both the court system and the human rights regime have been revamped in an attempt to speed up the process of hearing a case and lighten the backlog.

However, someone filing a lawsuit or complaint can still expect to be mired in the process for quite a while. In British Columbia, a woman who complained of sexual harassment from her boss recently had her case resolved by the province’s human rights tribunal. She had wanted the complaint to be handled as quickly as possible so she could get on with her life. She got what she wanted — a verdict in her favour — but the ruling came more than three years after she filed the complaint.

In Alberta, the situation is similar for the Office of the Information and Privacy Commisioner (OIPC) as it makes its way through piles of privacy complaints. But the province’s courts have put extra pressure on the OIPC to hear its cases in a timely manner. There is a statutory deadline of 90 days, but the OIPC is allowed to extend it with proper notice to the parties involved, which it often does.

However, the Alberta Court of Queen’s Bench, backed up by the Alberta Court of Appeal in a case where the OIPC took more than 17 months to rule on a privacy complaint, found timeliness was of the utmost importance in hearing complaints and the OIPC could only extend the deadline if it had a good reason. If it can’t make the deadline and didn’t have a good reason for an extension, the OIPC risked losing jurisdiction over the case, the courts said.

Alberta privacy commissioner Frank Work bemoaned the decision, saying his office simply didn’t have the resources to meet the statutory deadlines and would likely have to discontinue a large number of complaints that couldn’t be handled in 90 days. Work also warned of the consequences for other tribunals across Canada that were bound by specific timelines.

Timeliness is desirable in any kind of legal action, but how far should we go to enforce it? It’s unlikely courts will be faced with any binding deadlines, so are tribunals less important? Is it better to wait a long time for a resolution or to have no resolution whatsoever? In the Alberta circumstances, it might seem ridiculous to have a privacy complaint languish in the system for a year-and-a-half or two years, but is it better to tie the hands or dismiss the privacy authority if it takes too long?

What do you think? Join the conversation by adding a comment.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law. For more information, visit www.employmentlawtoday.com.

No division between personal, professional on the Internet

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Consider this scenario: A manager is accepting applications for a position in his department. He interviews one particular candidate who seems well-qualified and the interview goes well. However, that evening, the manager sees that same individual at a bar going wild and partying it up. Should the manager take this behaviour into consideration? Will how the individual acts on her own time affect her job performance? At any rate, it might make the manager reconsider the applicant’s suitability for the job.

This kind of situation is becoming more common, but in a different way. With social networking sites and the Internet, it’s gotten pretty easy to search for information on anyone without leaving the comfort of the office. A scenario similar to the one above could happen, but instead with the manager checking out the applicant’s Facebook or MySpace page and finding photographs that show the behaviour described above. The manager could also find out views and opinions of the individual if she posted on online forums or blogs.

In the spring of 2009, a Harris Interactive poll of 2,667 hiring managers and HR professionals in the United States revealed 45 per cent of employers used social networking sites to research job candidates, with another 11 per cent planning to do so. And 35 per cent said they didn’t hire someone because of what they found on those sites. In a similar December 2009 survey by Microsoft, 70 per cent of HR managers and recruiting professionals said they had rejected job applicants because of information they found online. Only seven per cent of consumers said they thought their job applications were affected by online data.

It’s evident what’s online about a person is affecting how many potential employers see them. But how much weight should employers place on what they see online? Is it enough to reject a job candidate that otherwise seems fine? There could be some concerns with this.

A few photos or comments online may not represent the type of person an individual is. They could be from some time ago or an isolated incident. It’s difficult to get context from merely surfing online without discussion with the individual, particularly since the Internet is not exactly the most accurate source of information. It’s also possible a person’s behaviour away from work has no bearing on her performance. An employer could risk missing out on a great employee by not hiring someone over its perception of something it sees online.

An employer rejecting a job candidate because of something it found online would also have to be careful about what exactly the information was, or it could be faced with a discrimination complaint if it was related to any ground protected under human rights legislation.

Background checks on job applicants are normal and the availability of information on the Internet allows employers to research them like never before. But it would be wise to use careful judgment or else an employer could miss out on an opportunity, or even find itself in legal trouble.


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