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July 5th, 2017 | Sterling
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.
Human rights laws exist in all jurisdictions in Canada. They are designed to prevent discrimination based on certain protected characteristics. Each jurisdiction (the ten provinces, three territories and the federal jurisdiction) has its own law with its own nuances, but many of the protected classes are similar. 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 Rights 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, genetic characteristics, disability, gender expression or identity, 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, so it is vital that organizations familiarize themselves with the laws that could apply to them. For provincially-regulated businesses, the applicable law may be the one that applies where the business is located, where the applicant resides, where the recruitment is happening or where the employment will take place. If these activities happen in more than one province or territory, multiple laws could apply.
It is almost inevitable that organizations will come into contact with information identifying applicants’ protected status during the recruitment, interview and background check process. Controls should be built into the process to mitigate this risk. The following are a few examples of sensitive information that could appear in a background check:
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.
Criminal records and police information require great care to avoid unfair or illegal discrimination. There are three different types of protections given to offences based on Canadian law, but they are treated in different ways in different jurisdictions.
The three types of police or judicial information that may be protected under Human Rights laws:
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. Illegal discrimination or the appearance of it may result in a human rights complaint, which can lead to a time-consuming and expensive investigation. Organizations found to have violated the law may be required to pay damages to the complainant, and in some cases, punitive damages can be awarded. Individuals can also file lawsuits over human rights violations. Having good practices and procedures in place to reduce the possibility of illegal discrimination may help respond to a human rights complaint or lawsuit.
Mark Sward, Sterling Talent Solutions Privacy Director, presented two very informative webinars about Canadian privacy and human rights laws. Both webinars, Employee Rights, Part 1: Privacy in Canada and Employee Rights, Part 2: Human Rights in the Workplace, are available for On Demand viewing. Find out more about how Canadian privacy and human rights laws affect the hiring process Human Rights by downloading our white paper, Legal Considerations for Background Screening in Canada.
Please note: Sterling Talent Solutions is not a law firm. The material available in this publication is for informational purposes only and nothing contained in it should be construed as legal advice. We encourage you to consult with your legal counsel to obtain a legal opinion specific to your needs.
This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.