February 14th, 2025 | Sterling

The Role of Canadian Human Rights Laws in Workplace Equality

Canadian human rights laws play a crucial role in promoting workplace equality and are a fundamental aspect of how Canada operates. Employers have a key responsibility to ensure a safe, engaging, and legally compliant working environment for all employees, especially those who require the most protection. This blog explores Canadian human rights laws and their impact on the background screening industry. Read on for what you need to know as a Canadian employer.

Canada’s Human Rights Laws

Human rights laws in Canada exist at both the federal and provincial levels. The Canadian Charter of Rights and Freedoms, which was added to the Constitution in 1982, governs only government actions and does not extend to private organizations or individuals. The Canadian Human Right Act, on the other hand, applies to federally regulated organizations, such as telecommunications companies and railways. It covers all forms of discrimination, including those based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability, or a conviction that has been pardoned or subject to a record suspension.

Each province and territory has its own human rights laws, which differ slightly and protect various 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 certain jurisdictions, specific types of police or criminal record information are safeguarded under human rights law. Consequently, employers must conduct individual assessments to determine whether a candidate should be hired based on the details revealed in the screening report. Generally, police information falls into two categories: non-conviction records and criminal conviction records.

• Non-conviction Records – Police or court records that did not or have not yet resulted in a conviction, such as warrants, pending charges, dismissed charges, and police interactions. A discharge, which involves a finding of guilt without a conviction, is also considered a non-conviction record. These records can be found by an Enhanced Police Information Check and certain checks conducted by local police.
• Criminal Conviction Records – These records, commonly referred to as “criminal records,” document instances of criminal convictions. It’s important to note that not all offenses are criminal; some are classified as penal or regulatory offenses and can occur at both the federal and provincial levels. While all criminal law is federal, not all federal offenses are considered criminal.

Employers should take into account applicable laws and the risk associated with each position when deciding whether to screen for both criminal conviction and non-conviction records or for criminal convictions only.

Human Rights Pitfalls

Recruiters and hiring managers have extensive access to information about job applicants. Some of this information is protected under human rights laws and must be handled with great care. There are many challenges when it comes to personal information and human rights laws that need to be addressed, including:

Too Much Information: Asking for too much information or too early in the hiring process could lead to an appearance of discrimination. Employers should focus solely on information relevant to the job they are hiring for. Examining irrelevant information, such as non-professional social media profiles, when it is not pertinent to the role, can inadvertently lead to the collection of protected information. Best practice is for employers to be mindful of collecting protected information and take steps to avoid exposure, such as using a third party to handle this process when necessary.

Policy or Enforcement Gaps: All staff, including leadership, need clear guidance on Canadian human rights and privacy laws, as compliance with these rules is not always intuitive. Human rights considerations should be integrated into all company policies, including those related to advertising, hiring, onboarding, discipline, complaints, whistleblowing, and more.

Accommodations: Employers must accommodate protected characteristics unless doing so would cause “undue hardship” to the business. Companies should thoroughly review human rights considerations before making any hiring or firing decisions.

Lesser-known Protections: Each Canadian province and territory has its own human rights laws, which include several lesser-known protected characteristics. These can include civil status, family status, source of income, social condition, and political beliefs. Employers must be well-informed about the protections in their jurisdiction’s laws and understand how they are applied.

Disabilities: Many disabilities are not immediately visible. Mental illnesses and addictions can also be considered disabilities that require accommodation.

Balancing Thoroughness and Compliance

Obtaining background checks that are both thorough and compliant with Canadian human rights laws can be challenging. Employers operating in one or more Canadian provinces should carefully consider the specific laws of those provinces. National organizations, on the other hand, must take into account the laws of all provinces. When determining how to handle criminal or police record checks for your organization, consider asking the following questions:

• What risks are you trying to mitigate?
• What types of past behaviors would pose an unacceptable risk? Is knowledge of convictions sufficient, or does your organization need information on pending charges, warrants, or other non-conviction details?
• What specific restrictions exist in the human rights laws that apply to your organization?

After answering those questions, consult with a Sterling Backcheck representative to learn about our Canadian Criminal Record Check (CCRC) and Enhanced Police Information Check (E-PIC) services. These services offer flexibility in choosing the types of information to collect.

Most importantly, conduct an individual assessment of the results to determine if any records should disqualify the candidate. A useful guideline comes from a 1953 B.C. court case (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 employer’s ability to carry on its business safely and efficiently?
• What were the circumstances of the charge and the particulars of the offence involved? How old was the individual when the events in question occurred, and 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? Have they shown any tendencies to repeat the kind of behaviour with which they were charged? Have they shown a firm intention to rehabilitate themselves?

Social Media Searches and Canadian Human Rights Laws

More and more, hiring managers are conducting social media checks to gather insights that help employers minimize risk and hire better quality candidates. From a privacy perspective, employers should only collect the personal information necessary to achieve their stated purpose. From a human rights perspective, collecting information that could lead to prohibited discrimination should be avoided. Unfortunately, social media is rife with irrelevant information and details about protected characteristics. There are two ways of navigating this minefield:

• Avoiding non-professional social media platforms; or
• Use an impartial third party to review public social media. This can help filter out risky information while still allowing employers to see relevant details, such as education work history, and potentially offensive or illegal behaviour.

Sterling Backcheck’s Social Media Search is designed to help organizations recruit candidates who reflect their values and culture without uncovering information that could lead to accusations of illegal discrimination.

Protecting Your Organization from Complaints of Discrimination

To protect candidates’ privacy and avoid any appearance of discrimination, consider waiting until you have selected your top candidate before performing any screening that could reveal protected information. If the findings are negative, review them carefully to determine whether you need — and are permitted —to disqualify the candidate for the specific role. This privacy-friendly approach prevents you from collecting sensitive information from individuals you do not actually intend to hire. By removing protected information from your decision-making process, you help avoid potential human rights violations.

Sterling Backcheck provides organizations with compliance guidance and best practices to help you navigate the complex landscape of Canadian human rights legislation and hiring. Visit our Compliance Hub for more resources, or contact us to speak with one of our experts.

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.