Ontario Human Rights Commission makes right move in putting onus on employers to prove it’s a bona fide occupational requirement.
By Todd Humber, HR Reporter
If your job posting calls for “Canadian experience,” it may now be discriminatory — at least in Ontario.
The Ontario Human Rights Commission (OHRC) unveiled its new Policy on Removing the ‘Canadian experience’ Barrier on July 15, and it came out swinging against employers who may not be giving immigrants a fair shake at job opportunities.
“The OHRC’s position is that a strict requirement for ‘Canadian experience’ is prima facie discrimination (discrimination on its face) and can only be used in very limited circumstances,” it said in the 16-page policy. “The onus will be on employers and regulatory bodies to show that a requirement for prior work experience in Canada is a bona fide requirement, based on the legal test this policy sets out.”
When I read the OHRC’s policy, I started with a cynical eye — can this really make a difference?
If an employer doesn’t want to hire a certain group of people — say, minorities — it doesn’t need to put “no minorities need apply” in the ad. It can just not hire minorities. It’s racist. It’s discriminatory. It’s illegal. But it’s hard to prove that in the absence of a smoking gun.
Same with asking for Canadian experience. You don’t need to put it in a job ad if you only want workers who have proven themselves in Canada — you can just skip the resumés that don’t have it, or perhaps even bring in a few token candidates who don’t fit your bill to help with the optics. That tactic is reminiscent of the National Football League’s Rooney rule, which requires NFL teams to interview at least one minority candidate for head coaching and other senior positions and has led to complaints among some minority candidates that they’re being brought in and used only to satisfy the rule.
Plus, employers don’t seem to be calling for Canadian experience— at least not blatantly.
An unscientific search of job board Workopolis on the morning of July 15 revealed just 59 postings with the phrase “Canadian experience.”
Then my cynicism faded and I donned my “left alone people will do the right thing” blinders. Is this even necessary in modern Canada?
While nobody would suggest every employer understands the economic benefits of hiring immigrants, that tide has certainly turned.
It’s safe to say the majority get it — and we’ve covered our share of great stories highlighted at the annual Immigrant Success (IS) Awards in Toronto, of which Canadian HR Reporter is a key sponsor and a strong believer.
But those blinders were quickly knocked off by a survey the OHRC did in 2012 on Canadian experience. It received more than 1,000 responses from jobseekers, regulatory body applicants, employers and others. It proved that newcomers face Canadian experience requirements from employers at the job search stage.
It also showed that professional regulatory bodies need to find a way to smooth the path to membership for new Canadians without Canadian experience — so there’s work for those bodies to do as well.
With all that in mind, there’s only one way to view this new OHRC policy: It’s laudable and it’s helpful to employers and jobseekers alike.
Any move that helps new Canadians find work in their fields can only be met with open arms. In nearly all cases, a call for Canadian work experience is arbitrary at its root. And in positions where it is absolutely critical, employers will still be able to call for it. They’ll just have to clear the bona fide occupational requirement hurdle, which was spelled out in the Supreme Court of Canada’s ruling in Meiorin. Essentially, employers must prove the decision was:
•adopted for a purpose or goal that is rationally connected to the function being performed
•adopted in good faith, in the belief that it is needed to fulfill the purpose or goal
•reasonably necessary to accomplish its purpose or goal, because it is impossible to accommodate the candidate without undue hardship.
The Meiorin bar is a high one, so employers will need to ensure the position truly requires Canadian experience before making it a requirement.
While some may argue the real problem is a lack of jobs, not the wording chosen by employers in job postings, the fact remains that we need talented immigrants coming to Canada, en masse, in order to maintain our standard of living and grow the economy.
“If Canada is seen as a place where it is impossible to find a good job, a job in your field, or where, as an engineer or PhD graduate you are likely to end up driving a taxi, it will no longer be a desirable destination for many of the world’s most skilled immigrants,” the OHRC said in the policy. “They will simply choose to go elsewhere.”
The message from the OHRC is simple: Canada is an attractive destination for immigrants. But that shine can easily come off — and some may argue it’s already starting to fade and peel as statistics show new Canadians face higher levels of unemployment and underemployment.
We don’t want the world’s best and brightest going elsewhere. We want them here in Canada, swimming among our talent pool and the OHRC policy will help ensure the water looks inviting.
Other jurisdictions should follow suit.
Todd Humber is the managing editor of Canadian HR Reporter, the national journal of human resource management.
In the policy, the OHRC included a list of best practices for employers.
Employers, representatives of employers and regulatory bodies should:
•Examine their organizations as a whole to identify potential barriers for newcomers; address any barriers through organizational change initiatives, such as by forming new organizational structures, removing old practices or policies that give rise to human rights concerns, using more objective, transparent processes, and focusing on more inclusive styles of leadership and decision-making.
• Review job requirements and descriptions, recruitment/hiring practices and accreditation criteria to make sure they do not present barriers for newcomer applicants. Take a flexible and individualized approach to assessing an applicant’s qualifications and skills.
• Give an applicant the opportunity to prove his/her qualifications through paid internships, short contracts or positions with probationary periods.
• Provide newcomers with on-the-job training, supports and resources that will enable them to close “skill gaps” (i.e. acquire any skills or knowledge they may be lacking).
• Use competency-based methods to assess an applicant’s skill and ability to do the job.
• Consider all relevant work experience – regardless of where it was obtained.
• Frame job qualifications or criteria in terms of competencies and job-related knowledge and skills.
• Support initiatives designed to empower newcomers inside and outside of their organizations (for example, formal mentoring arrangements, internships, networking opportunities, other types of bridging programs, language training, etc.).
• Monitor the diversity ratios of new recruits to make sure they reflect the diversity of competent applicants overall.
• Implement special programs, corrective measures or outreach initiatives to address inequity or disadvantage affecting newcomers.
• Supply newcomers and social service agencies serving newcomers with information about workplace norms, and expectations and opportunities within the organization.
• Retain outside expertise to help eliminate barriers to newcomer applicants.
• Form partnerships with other similar institutions that can help identify additional best practices.
• Provide all staff with mandatory education and training on human rights and cultural competence.
Employers, representatives of employers and regulatory bodies should not:
• Require applicants to have prior work experience in Canada to be eligible for a particular job.
• Assume that an applicant will not succeed in a particular job because he or she lacks Canadian experience.
• Discount an applicant’s foreign work experience or assign it less weight than their Canadian work experience.
• Rely on subjective notions of “fit” when considering an applicant’s ability to succeed in the workplace.
• Include a requirement for prior Canadian work experience in the job posting or ad, or a requirement for qualifications that could only be obtained by working in Canada.
• Require applicants to disclose their country of origin or the location of their work experience on the job application form.
• Ask applicants questions that may directly or indirectly reveal where their work experience was obtained.
• Ask for local references only.