July 5th, 2017 | Sterling

Human Rights Laws and Background Screening in Canada

Legislative Bill Proposes Update to the Ontario Human Rights Code

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.

Canada’s Human Rights Laws

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.

Human Rights Laws and Background Screening Checks

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:

  • Social Media Searches: Many social media profiles, such as those on Facebook and Twitter, are primarily personal in nature. Applicants may mention age, religious or political affiliation, ethnic background or other information that you cannot use in an employment decision.
  • Drug and Alcohol Testing: Drug and alcohol testing may reveal information about an addiction, which may be considered a disability. This type of information can only be taken into account in very narrow circumstances where there is a bona fide job requirement.

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.

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:

  • In some jurisdictions, the law forbids discrimination based on criminal offences subject to a pardon or a record suspension.
  • In some jurisdictions, the law restricts (but does not forbid) discrimination based on criminal history, including convictions. In these jurisdictions, criminal history information can only be used if it is related to the position.
  • In other jurisdictions, the law does not specifically protect criminal history. However, a human rights commission or tribunal could extend protections to information found in a criminal record check based on other provisions in the law.

Compliant Background Screening Policies

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.

CTA White Paper: Legal Considerations for Background Screening in Canada

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.