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November 21st, 2017 | Sterling
Canadian human rights laws help promote equality in the workplace and are an integral part of Canadian society. They are designed to prevent discrimination based on certain protected characteristics. Human rights laws exist in all jurisdictions 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 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. 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.
There has recently been a private member’s bill to update to the Ontario Human Rights Code that is working its way through a committee of the Ontario legislature. The bill would, among other things, add police records to the characteristics protected under the Code. Police records are defined in the new bill as “charges and convictions, with or without a record suspension, and any police records, including records of a person’s contact with police.” Currently, the Code only protects against discrimination based on pardoned criminal offences or offences under provincial statutes, neither of which are reported through Sterling’s Canadian Criminal Record Check product.
If the updated bill is passed, it will align Ontario with British Columbia, Quebec, Yukon, Newfoundland, Labrador and Prince Edward Island best hiring practices, in that employers would no longer be permitted to discriminate against employees based on police records that are irrelevant to the position. It is important to note that this bill does not propose a blanket ban on collecting or considering police records in an employment decision; it only proposes that police records should only be used in an adverse employment decision where their absence (meaning a record devoid of certain offences) is a bona fide requirement of the position.
In some jurisdictions, some types of police or criminal record information may benefit from protection 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 a background screening report. 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. Having good practices and procedures in place to reduce the possibility of illegal discrimination may help respond to a human rights complaint or lawsuit.
Sterling will provide further updates on the Ontario Human Rights Code update bill as it progresses through the legislature. Whether or not it passes, Sterling Talent Solutions recommends that all employers across Canada consider the relevance of criminal records before making an adverse decision. Blog posts, webinars and whitepapers about background screening best practices can be found at Sterling’s website.
This content is offered for informational purposes only. First Advantage is not a law firm, and this content does not, and is not intended to, constitute legal advice. Information in this may not constitute the most up-to-date legal or other information.
Readers of this content should contact their attorney or lawyer to obtain advice concerning any particular legal matter. No reader, or user of this content, should act or refrain from acting on the basis of information in this content without first seeking legal advice from counsel or lawyers in the relevant jurisdiction. Only your individual attorney or legal advisor can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this content does not create an attorney-client relationship between the reader, or user of this presentation and First Advantage.