3. Ontario Employment Law During the Hiring Process

This video outlines the role of the employer during the hiring process with a specific focus on the Ontario Human Rights Code. The text below provides a summary of the video and includes more details on the Ontario Human Rights Code.

To read along, click here.

The Ontario Human Rights Code and the Hiring Process

The hiring process is an important part of establishing an employment relationship. The Ontario Human Rights Code applies throughout the entire employment process—from devising a job title and job description through to termination.

The Ontario Human Rights Code—16 Prohibited Grounds of Discrimination

The Ontario Human Rights Code is an important piece of legislation that governs how employees and prospective employees are treated, and it outlines specific prohibited grounds of discrimination. The Ontario Human Rights Code defines discrimination as treating someone differently on the basis of:

• Race
• Ancestry
• Place of origin
• Colour
• Ethnic origin
• Citizenship
• Creed
• Sex
• Sexual orientation
• Gender identity
• Gender expression
• Age
• Record of offences
• Marital status
• Family status
• Disability

If an employee or prospective employee believes that their human rights have been violated, or that they have been discriminated against, they can file a human rights complaint with the Human Rights Tribunal of Ontario (HRTO)—their role is to resolve discrimination and harassment claims under the Ontario Human Rights Code. Ultimately, it’s best to understand the Ontario Human Rights Code, ensure your practices are compliant, and promote employment practices that are free from discrimination.

Ontario Employment Law During the Hiring Process

Job Titles and Job Descriptions

As an employer, when you are hiring an employee, you must base your hiring decision on legitimate occupational requirements or competencies. Therefore, job titles and job descriptions must outline specific job requirements and competencies required for the position. These competencies must not reflect areas of prohibited grounds of discrimination as per the Ontario Human Rights Code. For example:

• Unacceptable: “The position requires Canadian experience.” This requirement is too vague; it is not referring to a specific competency or requirement, and it may imply discrimination against an immigrant.
• Acceptable: “The position requires excellent communication skills in both oral and written English.” This requirement relates to specific required skills that can be tested, and it does not imply discrimination against someone from another country.

On another note, in some specific cases, discrimination may be necessary. For instance, discrimination may be permitted if the disqualification is meaningful and for a legitimate business purpose. For example, a physical disability may be a legitimate reason not to hire someone for a job with certain physical requirements that would be impossible for the person to perform or would put someone in danger.

Resumes

It is up to the employee to ensure that the information on their resume is accurate. If an employer later discovers that the employee misrepresented themselves or their resume contained false information regarding a required competency for the position, that may be grounds for termination.

Interviews

The Ontario Human Rights Code also applies during the interview process. For instance, the types of questions asked must relate to specific occupational requirements of the job. For example:

• Unacceptable: “Are you married?” or “Do you have children?” In an interview setting, these questions may imply discrimination based on marital status and family status.
• Acceptable: “This position requires evening and weekend hours and some out-of-town travel. Will you be able to work weekends and travel?” This question relates to specific requirements of the position and does not imply discrimination.

Employment Contracts

Hiring an employee creates a contractual relationship with that person, whether that contract is verbal or written. Employment contracts set out expectations and requirements for the employee. An employment contract should always be kept up-to-date, and reviewed annually to ensure it is accurate and current. The contract should make clear:

• Duration (whether indefinite or for a defined term)
• Position and description of the work
• Compensation and benefits
• Evaluation and discipline process
• Any restrictive clauses (e.g., confidentiality, non-competition)— Make sure they are specific and limited. It is wise to limit restrictive clauses to ensure they are concrete, specific, and necessary. Excessive or unreasonable restrictions are not likely to withstand a court challenge.

Just as the employer is responsible for hiring an employee that has the required competencies for the role, the employer is also responsible for providing any necessary training for the employee to complete the job properly. It is also the employer’s responsibility to provide adequate supervision and regular feedback so the employee can carry out the job properly.