My Employment Law students are busy cramming for the exam, probably looking at human rights issues in employment. A game I like to play on this blog occasionally is Find the Illegal Want Ad. Here’s a new one, curtesy of the Toronto Star, which is hiring part-time Production Operators. Check out their ad here. The key “Requirements” are listed in the Ad as follows:
- Prior bindery or machine operator experience is preferred.
- Motivated self-starter willing to work in a fast-paced environment performing repetitive tasks.
- Must be able to lift up to 35lbs and stand for extended periods of time.
- Ability to work cooperatively in a diverse, team-based environment.
- Demonstrated on-the-job reliability and dependability.
- Excellent communication skills and detail-oriented.
- Completion of high school.
Anyone see any problems with this ad?
Not sure? Take a look at the Sections of the Human Rights Code that govern what an employer can include in a want ad. Section 23(1) covers this:
23. (1) The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.
This section says that an employer cannot publish a job ad that indirectly indicates qualifications by a prohibited ground of discrimination. What does that mean?
Section 23(1) [Job Ads] has to be read in conjunction with Section 23(2) [Application Forms] and especially 23(3) [Job Interviews]. Section 23(3) indicates that employers can ask questions that raise issues about prohibited grounds “where discrimination on such ground is permitted under the Code.” Sometimes, it is lawful to discriminate on the basis of a prohibited ground. For example, it is lawful to discriminate against a disabled person when that person is unable to perform essential duties of job and no amount of accommodation short of undue hardship would enable that person to perform the job (section 17). Therefore, at an interview, an employer can ask whether a person is capable of performing the essential duties of a job, and if the answer is no due to a disability, then a discussion must ensure about possible accommodation.
However, an employer cannot include in a job ad a requirement that a person not be disabled. Similarly, the employer cannot include a job ad any qualifications that “indirectly” indicates qualifications by a prohibited ground of discrimination. In other words, although it doesn’t say directly “applicants must not be disabled”, it includes a qualification that has the same indirect effect of automatically excluding disabled people.
Now go back to the Toronto Star job ad. Imagine you are in a wheelchair because of a disability. Is there any qualification in that job ad that would automatically disqualify you because of your disability, and cause you to not even bother applying?
Can you lift 35 pounds? Can you stand for extended periods of time?
[Note that in an arbitration decision, an arbitrator found that a requirement to lift 50 pounds indirectly discriminates against women, who on the whole are less able to meet the standard than men (Toronto District School Board, (2003), 120 L.A.C. (4th) 395 (Howe). Therefore, a job ad requirement to be able to lift 35 pounds might also adversely impact on women]
If the answer is that the requirements in the job ad indirectly classify applicants in accordance with their ability or inability to perform physical tasks, then it violates Section 23(1). At the interview stage, the employer could ask about the need for the applicant to be accommodated to perform those tasks (assuming they are “essential tasks”), but at the Job Ad stage, the employer is not permitted to include requirements that weed out every person with a disability that prevents them from heavy lifting and long-time standing.
For more discussion, check out the Human Rights Commissions’ booklet on Human Rights in Hiring.
So, is the Toronto Star’s job ad unlawful? Does anyone disagree with my description of how the Code regulates job ads?