March 7th, 2017 | Sterling

Employee Rights: Human Rights in the Workplace

Canadian human rights laws help promote equality in the workplace and are an integral part of Canadian society. One of the key responsibilities of an employer is to provide a safe, engaging and legally compliant working environment for all employees, including those groups who most need protection. In Part 2 of the employee rights series, Employee Rights: Human Rights in the Workplace, Mark Sward, Director of Privacy at Sterling Talent Solutions discusses Canadian human rights laws and how they affect the background screening industry.

Canada’s Human Rights Laws

There are human rights laws at both the federal and provincial level in Canada. The Canadian Charter of Rights and Freedoms, enacted in 1982, is part of the Constitution and applies to government action only, not to private organizations or individuals. The Canadian Human Right Act applies to organizations in the federal jurisdiction, like telecommunications companies and railways, and covers all types of discrimination which are based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction that is subject to a pardon or record suspension. Each province and jurisdiction has its own human rights law, and each is slightly different and protects different groups in different ways.

Most human rights laws permit exemptions where there is a bona fide occupational requirement, such as a certain level of physical ability. In these cases, employers must make accommodations to the individual until they reach the point of undue hardship.

Human Rights Protection for Police Information

In some jurisdictions, some types of police or criminal record information may benefit from protections under human rights law. This means that employers need to make individual assessments to decide if the candidate should be hired based on the information found in the screening report. Generally speaking, there are two different types of police information: non-conviction records and criminal conviction records.

• Non-Conviction Records – These are police or court records that did not or have not yet resulted in a conviction. These types of records include warrants, pending charges, dismissed charges and police interactions. A discharge, where there is a finding of guilt (but it isn’t a conviction), is also a non-conviction record. These records can be found by an Enhanced Police Information Check and some checks conducted by local police.
• Criminal Conviction Records – Records of criminal convictions are what is normally meant by a “criminal record”. There are many types of offences that are not criminal; these are known as penal or regulatory offences and they exist at both the federal and provincial level. It is important to remember that all criminal law is federal, but not all federal offences are criminal.

Human Rights Pitfalls

Recruiters and hiring managers have access to a great deal of information about job applicants. Some of this information can be covered by Human Rights laws and must be handled very carefully. There are many challenges when it comes to personal information and human rights laws that need to be addressed:

Too Much Information: Asking for too much information or too early in the hiring process could lead to an appearance of discrimination. Employers should only review relevant information about the job they are hiring for. Reviewing irrelevant information, such as non-professional social media profiles, can lead to the accidental collection of protected information. The best policy is for employers to be conscious of collecting protected information and take steps to avoid exposure, like having a third party do it.

Policy or Enforcement Gaps: Staff, including all leadership, requires clear guidance in human rights and privacy laws as compliance to these rules are not always intuitive. Human Rights considerations should be built into all policies, including advertising, hiring, onboarding, discipline, complaints, whistleblowing and others.

Accommodations: Employers should accommodate for protected characteristics to the point of “undue hardship” on the business. Companies should always carefully review the human rights considerations before making hiring or firing decisions.

Lesser-Known Protections: Since each Canadian province and territory has its own human rights law, there are a number of lesser-known characteristics that are protected. These include civil status, family status, source of income, social condition or political beliefs. Employers need to be well informed on the protections in their jurisdictions’ laws and know how they are applied.

Disabilities: There are many disabilities that are not visible. Mental illness or addiction could also be seen as a disability that requires accommodation.

Questions

There were some insightful questions asked during the webinar. Mark Sward answers three of these questions below:

1. What is the best way to get the most comprehensive criminal records, while still abiding by all human rights law? It seems like these laws can get complicated.

They can indeed, and unfortunately, it takes a bit of work to build a uniform policy across Canada. If you only operate in one or two provinces, you should carefully consider those provinces’ laws; if you are a national organization, you may need to take all provincial laws into account. I recommend asking the following questions when determining how to handle criminal or police record checks:

• What risks are we trying to mitigate?
• What types of past behaviours would be an unacceptable risk? Would knowing about convictions be sufficient, or do we need to go deeper and find out about pending charges, warrants or other non-conviction information?
• What specific restrictions exist in the human rights laws that apply to us?

Once those questions are answered, you can speak with a Sterling Talent Solutions representative to understand our Canadian Criminal Record Check (CCRC) and Enhanced Police Information Check (E-PIC) services. These allow you some flexibility to determine which types of information you will collect. Most importantly, though, you should conduct an individual assessment once you receive results, to determine if records you find should disqualify the candidate. A good test for this comes from a B.C. court case from 1983 (Woodward Stores v. McCartney), where the judge instructed employers to ask the following questions:

• Does the behaviour for which the charge was laid, if repeated, pose any threat to the employers’ ability to carry on its business safely and efficiently?
• What were the circumstances of the charge and the particulars of the offence involved; e.g. how old was the individual when the events in question occurred, were there any extenuating circumstances?
• How much time has elapsed between the charge and the employment decision? What has the individual done during that period? Has he shown any tendencies to repeat the kind of behaviour for which he was charged? Has he shown a firm intention to rehabilitate himself?

2. Can you please clarify what we can and cannot look at in terms of social media? It used to be OK to tell candidates that everything publicly available would be looked at. What are the rules now?

From a privacy perspective, you should only collect the personal information that you need to achieve your stated purpose. From a human rights perspective, you should avoid collecting information that could lead to prohibited discrimination. Unfortunately, social media is rife with irrelevant information and information about protected status. Two possible ways of navigating the minefield of social media are:

• Avoid looking at social media platforms that aren’t professional in nature; or
• Have a third party review public social media and only pull the information that you want and provide it to you. This can help weed out risky information while still allowing you to see what is relevant, like education and work history and potentially offensive or illegal behaviour.

3. We can interview five people for one role – how do we protect ourselves from any complaints of discrimination?

To protect the privacy of your candidates and to avoid any appearance of discrimination, you may want to consider waiting until you have selected your top candidate and only performing sensitive screening on that person. If you do find negative information, do a careful review of it to determine whether you need—and are permitted—to disqualify the candidate. This is a privacy-friendly solution as you avoid collecting sensitive information from people you do not actually intend to hire, and it helps avoid human rights violations because it removes the protected information from your thought process while picking a candidate.

Find out more about employee rights and Human Rights laws in Canada by checking out the On Demand version of this very informative webinar. You can also listen to an On Demand version of the first webinar in the Employee Rights series, Employee Rights, Privacy in Canada.

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