March 22, 2017
In some cases, you could be asking unlawful or even discriminatory questions without even knowing it. Many of the mentioned items require some basic knowledge of the BC Human Rights Code.
According to the BC Human Rights Code (Discrimination in employment advertisements), you must not publish job postings or advertisements that give preference to:
- Indigenous identity
- Place of origin
- Political belief
- Marital status
- Family status
- Physical or mental disability
- Sexual orientation
- Gender identity or expression
There are exceptions under the Code, however, where the organization is advertising an employment equity program that aims to ameliorate the conditions of disadvantaged individuals, or where the criteria constitute “bona fide occupational requirements” (for example, the ability to drive or lift a certain amount of weight for particular positions).
Pay Transparency in Job Postings
Effective November 1, 2023, employers must include the expected salary or wage (or expected salary or wage range) for a job in any advertisement for a publicly advertised job opportunity. According to government guidelines, the requirement applies to jobs advertised in other jurisdictions if the position is open to BC residents and may ever be filled by someone living in BC, either in-person or remotely.
A salary or wage range must specify a low-end and high-end. For example, simply stating “$50,000 and up” would not be in compliance with the requirements of the Pay Transparency Act.
The Pay Transparency Act also prohibits employers from seeking pay history information from an applicant unless that information is publicly accessible, and prohibits employer reprisals for certain employee conduct such as asking the employer about their pay or revealing their pay information to a job applicant.
Once you are ready to begin your interviews, there are a few key points to keep in mind when designing questions. You need to ensure your interview process is not intentionally or unintentionally asking questions on prohibited grounds (see Discrimination in employment provisions). It is important to describe the job and requirements in a way that gives all applicants a chance to apply. For example, if a position requires regular overtime and has an irregular schedule, do not ask:
- “Do you have children?” as you would be assuming a person with children could not work longer hours.
To ensure the candidate can work the schedule you need, you should ask:
- “This job requires regular overtime and has an irregular schedule, can you meet this requirement?”
If a job requires heavy lifting, do not ask:
- “Do you have a bad back or any medical issues?” as you might be discriminating against a candidate with a disability.
To ensure the candidate can meet the physical requirements for the role, you should ask:
- “This job requires periods of heavy lifting for most of the day. Are you able to do this?”
It is important to note that you cannot ask unlawful questions during any stage of the recruitment process including your interview or while conducting reference checks. For example, just as you cannot ask a candidate about a disability in the interview process, asking their former employer, “How many sick days did they take last year?” may also create an inference that the hiring process was conducted in breach of the Human Rights Code. A more useful question for a former employer may be to ask if the candidate was reliable and punctual in their previous job.
MAKING THE OFFER
According to the BC Human Rights Code (Discrimination in wages), it is important that you not “discriminate between employees by employing an employee of one sex for work at a rate of pay that is less than the rate of pay at which an employee of the other sex is employed by that employer for similar or substantially similar work.” You must ensure that differences in wages when offers are being made are based on “the concept of skill, effort and responsibility, seniority systems where unions exist, merit systems and systems that measure earnings by quantity or quality of production.” In addition, under the Pay Transparency Act, employers above a certain size threshold will soon be required to prepare and post pay transparency reports on all their BC employees that will show gaps in pay, if any, for certain gender groups.
In all steps of the recruiting process (job postings, interviews, checking references and making the offer), remember the prohibited grounds and make sure all questions are asked in a way that gives all applicants a fair chance to respond based on your job needs. Doing so will minimize the risk and chance that you might be charged with discriminatory hiring practices. Good recruiting is also good ethical and business practice, which will foster your positive reputation and make it easier for you to recruit. Remember that every interview you conduct is like an advertising opportunity. Every candidate should leave wishing they would have the opportunity to work for you.
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Information provided by Jakob Sanderson, an articling student with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.