May 10th, 2024 | Sterling

How to Avoid Human Rights Violations in Your Background Check Process

Every Canadian jurisdiction has human rights laws that protect candidates from discrimination based on their gender, race, religion, and other protected attributes. However, a lesser-known fact is that candidates who have a criminal record may also be entitled to protection in certain jurisdictions. Ignoring this aspect can potentially expose employers to expensive human rights litigation. In this blog, we explore the implications for your background check program and offer guidance on making hiring decisions that help enable compliance.

Human Rights Legislation in Canada

In Newfoundland and Labrador, Prince Edward Island, Quebec, British Columbia and Yukon, human rights legislation prohibits employers from discriminating against candidates based on specific criminal charges or convictions, unless the criminal record directly relates to the position. This means that before making an employment decision based on criminal history, employers must identify the convictions forming an individual’s criminal record, evaluate these convictions in light of the specific duties and responsibilities of the position, and ensure that any decision aligns with the essential requirements of the job.

What does this mean, in practice? Hiring managers should ask themselves whether the criminal record could pose a safety risk or prevent the candidate from successfully completing their job duties. For instance, driving convictions are relevant for a school bus driver role but may not be as significant for an office job. A fraud conviction might raise concerns for a position handling sensitive data, but if the role involves stocking shelves, the same conviction may not be relevant.

Hiring managers also need to assess whether the conviction occurred recently or many years ago, the severity of the offense, the level of responsibility required for the new position, and if the position requires the candidate to interact with children, teenagers, or vulnerable adults. Remember, a balanced approach that considers both the candidate’s rights and organizational needs is essential in making informed hiring decisions.

The Complexities of Criminal Record Disclosure

In Canada, the name-based criminal record check process relies on self-declaration due to Royal Canadian Mounted Police (RCMP) requirements. This means that applicants are required to declare the details of their criminal record check. This includes information about the offense, its location, and the date of conviction. The police agency conducting the check will then compare the declaration with the information stored in the National Repository of Criminal Records. This step is intended to ensure the accuracy of the disclosed criminal history.

However, there are various scenarios in which criminal record disclosure gets tricky. When an applicant with a criminal record fails to declare their record accurately, either accidentally or intentionally, the final report will confirm its existence without providing further details. This means that the hiring manager will know their candidate has been convicted at some point, without knowing when, where or why.

Candidates may choose not to reveal their record, possibly in an attempt to conceal it, though they could also have forgotten the details or think it is not relevant. This can create a dilemma for the hiring manager. Should they reject the application based on the knowledge that the applicant has a record, even without having the complete picture? While some may argue that the candidate’s lack of transparency would be sufficient grounds for rejection, the situation is more complex. Many Canadian provinces and territories have laws and regulations protecting candidates from discrimination based on their criminal record if this record is not relevant to the job. The truth is that if an employer discovers a criminal record — whether or not the applicant revealed it themselves — and subsequently chooses not to hire that individual, they could be violating that candidate’s human rights.

Managing Cases of Applicants Withholding Information

When a candidate chooses not to reveal their record, the initial step hiring managers should take is having a conversation with the candidate to seek clarification. Here are some steps that may be helpful:

• Advise the candidate, by writing or in person, that the background check may have revealed a record that was not shared or that was inaccurately shared.
• Clearly state that discrimination based on a criminal record that is irrelevant to the position will not occur, but a decision cannot be made until all relevant information is made available.
• Investigate why the candidate chose not to provide the information. Some candidates may believe that convictions from decades ago are no longer relevant. Others might assume automatic rejection due to their record. Occasionally, candidates genuinely attempt to divulge their record but omit specific details, such as conviction dates. A candidate could also dispute the findings and assert having no record, which means that opening a dispute case with the background check provider could be required. When in doubt, check with your organization’s legal department to determine how to proceed with a specific case.

After identifying the reasons behind the inaccurate declaration, it’s crucial to take necessary actions to gather additional information. If the candidate is confident in their ability to provide an accurate record, consider granting them another opportunity to submit a new criminal record check. Candidates who do not remember the details of their convictions can be directed to the lawyer who represented them, the local police station, or the court where the case was handled to request a copy of their record. If the candidate is sure they do not have a record, dispute procedures should be initiated, which could mean completing a re-check. In some cases, candidates may need to complete a Certified Criminal Record Check, which involves a search of their fingerprints in the National Repository, in order to obtain a definitive answer.

Once your applicant has obtained the details of their record, you can either accept what is presented, or to safeguard against forgery and maintain consistency, consider asking the applicant to consent to a new check, ensuring the accuracy of the updated information. Sterling Backcheck’s Zero-In service is designed as a quick and inexpensive “re-check” for applicants who fail to declare correctly the first time.

In essence, it’s essential to treat all candidates fairly. Unjustly discriminating against individuals with irrelevant criminal records undermines their efforts to reintegrate into society. Moreover, such discrimination could expose employers to scrutiny and potential negative consequences if the Human Rights Commission becomes aware of the situation. As always, hiring managers can rely on Sterling Backcheck’s expertise and guidance to navigate the complex interplay of human rights legislation and recruitment. For more compliance resources, check out our Compliance Hub. To inquire about setting up a background check program, contact our experts.

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.