A Discussion of Discrimination in Job Ads

I wrote the other day that listing a requirement to speak Mandarin in a job ad for positions at a coal mine would violate Section 23 of the Ontario Human Rights Code if that Code applied to the ad.  I then asked whether that was the case in other provinces, since I don’t have time to do a cross-country search.   However, one commentor called me on my assertion that the ad would violate the Ontario Code.  He says that it is perfectly lawful for an employer to include a job requirement to speak Mandarin in the ad.
The inclusion of a requirement to speak Mandarin in an ad for coal miners provides us with a great case study to look at how the Code regulates job ads, a topic we cover in our Employment Law class.  Can an Ontario employer post a job ad that specifies that speaking Mandarin is a job requirement?   See what you think. 
I’ll make the argument that the Code prohibits this.  You can then make the case for the other side of the argument if you believe my argument is faulty.  I think Section 23(1) is one of the most misunderstood sections of the Code, in part because few people ever file complaints against job ads, so few people spend much time thinking carefully about this part of the law. 
Why a Job Ad Requiring Mandarin for a Coal Miner Violates the Ontario Human Rights Code
Begin with the applicable section of the Code that regulates job ads.  It is Section 23(1):

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.

What is that section intended to do?  We can discover the answer by working through a series of questions.
Question 1:  Could a coal mine refuse to hire a coal miner who can’t speak Mandarin? 

The answer is, maybe.  Why?  First, we need to decide whether requiring workers to speak Mandarin indirectly discriminates against applicants on the basis of either ethnic origin, race, ancestry, or place of origin.  “Language” is not a prohibited ground, but language can be a proxy for those other prohibited grounds.  It’s easy to see how. The class of persons who are not born in Mandarin speaking regions or whose ethnicity, ancestry, or race has no relationship to Mandarin will be far less likely to be able to satisfy the requirement to speak Mandarin than applicants whose self is linked in some way to cultures where Mandarin is spoken.  A requirement to speak Mandarin indirectly discriminates against non-Mandarin speaking applicants in the same way that a requirement to lift 50 pound boxes or run fast discriminates indirectly against applicants in wheelchairs due to a disability. [And, for the same reasons that follow, it is unlawful to include a requirement to lift 50 pounds or run fast in a job ad as well].  Including a requirement to speak Mandarin ensures a sample pool consisting mostly–though not exclusively–of applicants from Chinese or Taiwanese descent, thereby granting a preference for that applicant pool. 

If we can agree that a job requirement to speak Mandarin indirectly discriminates on a prohibited ground, does that mean the requirement is a breach of the Code?  The answer is, not necessarily.  Section 11 (constructive discrimination) deals with this issue.   It says that a job requirement that indirectly discriminates is NOT a breach of the Code if speaking Mandarin is a ‘reasonable and bona fide job requirement in the circumstances”.  So, if being able to speak Mandarin is really essential to being a coal miner in Canada, then this is where the employer gets its chance to prove that and avoid liability under the Code.

BUT, and this is a CRUCIAL BUT, the only way that the employer can avoid that liability is if it can prove that there is no way to accommodate the non-speaking Mandarin coal miner, short of undue hardship, that would enable him to work as a miner.  That requirement appears in Section 11(2).  This introduces a mandatory process of assessment that requires a dialogue between employer and worker.  This dialogue should consider the duties of the job, the worker’s capacity to work safely without speaking Mandarin, why Mandarin is required, the ability of the employer to hire intepretors or supervisors who could translate, the potential for coworkers who do speak Mandarin to assist those who do not, the level of language skills of the individual applicant, and other factors.  Working through this accommodation process is one of the most important features the Code introduced into Ontario employment law.

So a coal mine employer MIGHT be able to refuse employment to non-Mandarin speaking applicants, but not before  it  first exhausts all efforts to find accommodation, up to the point of undue hardship. 

Question 2:  Would including a requirement in a job ad that applicants MUST speak Mandarin discourage non-Mandarin speaking applicants from applying?

Of course it would.  If you think you can’t meet the requirements for the job, you probably won’t bother applying.  Why would you?  Assume that 100 miners don’t apply for the job because they don’t speak Mandarin.  The employer will have successfully weeded out all of those applicants simply by including the Mandarin requirement in the ad.  However, did the employer have a legal right to refuse to consider those applicants due to their inability to speak Mandarin?  No, it did not.  As we just explained, the employer could only refuse to hire the non-Mandarin speaking applicants if it can prove that it’s impossible to accommodate their language deficiency without undue hardship.  Trouble is, the employer completely bypassed the legal obligation to consider accommodation of the non-Mandarin speaking applicants, because none of them applied.   This would be a great way for employers to avoid having to consider accommodation if the Code permitted it:  just include a requirement in your job ad that you know will discourage certain segments of the population from applying, so that you don’t have to accommodate them.

Question 3:  Is it lawful to include a requirement that indirectly discriminates in a job ad?

This brings us back to the main question.   If it is unlawful to refuse employment to a non-Mandarin speaking applicant until the accommodation process has been exhausted, then surely it must be unlawful to include requirements in a job ad that would discourage non-Mandarin speaking applicants from applying in the first place.  That is precisely what Section 23(1) is there to deal with.  It adds an important component to the statutory model.  The idea is that any disqualification of applicants related to human rights reasons (direct or indirect) should occur at the interview stage or thereafter, and not at the initial stage of the job posting. That’s why Section 23(3), which regulates job interviews, allows employers to ask questions that touch on prohibited grounds.  At that stage, a discussion about possible accomodation must take place.  If people don’t even apply, then that fundemantel accommodation discussion never occurs.  Section 23(1) is there to protect the accommodation process, to ensure that it is not bypassed by means of a job ad that discourages protected classes of workers from submitting their applications.

So, to conclude my submissions, if an employer would be required to accommodate an applicant’s inability to satisfy a job requirement (under section 11), then the employer cannot include that requirement in its job ads.  That is what Section 23(1) says, in plain English.   That’s why a requirement to speak Mandarin in a job ad for an Ontario coal mine would violate the Code.

Do you see any problems with this analysis?  What is the counter argument?

If Section 23(1) does not do what I argued, then what exactly is its purpose?  What new type of behavior does it regulate that is not already covered by the general prohibition in Section 5 on discrimination in employment? 

If the argument above is correct, and posting a job ad requiring Mandarin is a violation of Section 23(1), then is it also a violation of the same section to include knowledge of French or English as a requirement in a job ad?  Why or why not?