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.
This means that a complaint must include information showing:
Attach the ad to the complaint and say where and when it was published.
The personal characteristics protected in employment ads are:
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.
There is one main defence to discrimination in employment. That is where the respondent proves their conduct was justified.
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:
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