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?

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