What Employment Advertisements are Discrimination
A person must not publish an ad for a job that expresses a limitation, specification or preference as to a protected characteristic.
For example, a job advertisement that says the company is looking for a person who is “young and dynamic” shows a preference as to age.
If the limitation, specification or preference is justified, it is not discrimination.
A complaint must set out facts that, if proved, could be discrimination under the Human Rights Code against each person named as a respondent.
This means that a complaint must include information showing:
- There is an advertisement in connection with employment or prospective employment.
- The complainant has a personal characteristic protected under the Code.
- The ad expresses a limitation, specification, or preference as to a personal characteristic.
Attach the ad to the complaint and say where and when it was published.
What personal characteristics are protected from discrimination regarding an employment advertisement?
The personal characteristics protected in employment ads are:
Limitation, specification, or preference
To make a complaint, the ad must express a limitation, specification, or preference as to a personal characteristic.
Examples of cases that may be discrimination:
A job ad says the company is looking for a person who is “young and dynamic”.
A community centre advertises a job assisting recent immigrants from Iran in adjusting to life in British Columbia. The ad expresses a preference for a person of Persian origin fluent in Farsi. The community centre may be able to show that the preference is justified as a bona fide occupational requirement.
Who can be named as a respondent?
- The employer. The employer is responsible for hiring and is usually the respondent in an employment advertisement complaint.
- The person who published the ad or caused it to be published.
How can a preference in an employment advertisement be justified? (Defences)
There is one main defence to discrimination in employment. That is where the respondent proves their conduct was justified.
There is also an exemption for non-profit organizations and for special programs, including employment equity programs.
Justification defence: bona fide occupational requirement (BFOR)
If the complainant proves that an employment advertisement limits or prefers job applicants based on a personal characteristic, this is called a prima facie case of discrimination.
Even if a complainant proves a prima facie case of discrimination, a respondent may argue that there is no discrimination because the limitation, specification, or preference is justified (i.e., based on a bona fide occupational requirement or BFOR).
To succeed with this defence, a respondent must prove three things:
- There is a legitimate job-related purpose for the limitation, specification, or preference
The respondent must identify the (non-discriminatory) purpose for the limitation, specification or preference in the ad.
For example, a preference may be for the purpose of serving recent immigrants from a certain country.
The respondent must also show how that purpose relates to the requirements of the job.
- The respondent adopted the limitation, specification or preference in good faith, believing it is necessary to achieving the purpose
This means that the respondent adopted the limitation, specification or preference to accomplish its job-related purpose, and did not mean to discriminate. In many cases, the complainant may not dispute that the respondent acted in good faith with no intent to discriminate.
- The limitation, specification, or preference is reasonably necessary to the purpose, such that the respondent could not accommodate the complainant (or others sharing their characteristics) without undue hardship
This means that the respondent fulfilled their duty to accommodate. To do so, the respondent must prove that it took all reasonable and practical steps to avoid the negative effect.
This includes proving:
- What the respondent did to explore options to find a reasonable result
- Why further steps were not reasonable or practical (would result in undue hardship)
- The respondent’s basis for concluding that it could not accommodate the complainant without giving up the legitimate job-related purpose or incurring undue hardship
Proof that a respondent reasonably accommodated a complainant’s disability may also require the respondent to show that it took any necessary steps to inform itself of the nature of the complainant’s medical condition, prognosis, and capabilities (including limitations or restrictions) for work.
It is not enough to point to some hardship and say no more could be done. A respondent must prove undue hardship by giving evidence about the effect that the accommodation would have on the respondent.
For example, if a respondent relies on excessive cost, it must prove both the costs of accommodation, and how this cost would result in undue hardship to it given its financial situation. It is not enough to rely on the high cost of accommodation without showing the respondent cannot reasonably afford it.
Factors an employer may rely on to establish undue hardship include:
- Financial cost
- Morale of other employees
- Interchangeability of the work force and facilities
- Size of the employer’s operation