Wanted: Male, 23-35, Any race except Caucasion, Non-union. Send photo and audition tape to the CBC.
So, employment law students, how many violations of the law do you see in that ad?
The National Post reported yesterday on an ad run by a recruitment office (Larissa Mair Casting) on behalf of the CBC, for a spot on a kids TV show. The ad included the above noted criteria. The story reports that, after complaints, the reference to “any race except Caucasian” was removed, but the other requirements I listed remain. The revised ad is reproduced below.
Let’s treat this as an issue under Ontario law, since that’s the statute I teach in class. In reality, the Federal Human Rights Act would apply to this job as an on-air personality for the CBC (see section 8 of that Act, and work through an analysis using that legislation if you like).
We are dealing with a job advertisement, so the first place to look is Section 23(1) of the Human Rights Code. That section regulates the content of job ads, and it says this:
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
Section 5 says that it’s unlawful to discriminate in employment on the basis of, among other grounds: age, sex, race, ethnicity, and colour. So Section 23(1) prohibits employers from advertising positions that “directly or indirectly” indicate qualifications by age, race, ethnicity, and colour.
Does the CBC ad do that? Let’s count the ways.
Firstly, you have to ask whether there is some special act or regulation that exempts performance arts from human rights laws. I confess that I am not aware of any, but nor have I ever researched this question. Does anyone know if ‘casting calls’ for performance art are exempt, so that normal human rights laws on discrimination in recruitment don’t apply?
Assuming the human rights laws do apply, then look again at the CBC ad. It directly lists as a qualification age (23-35). Secondly, it directly lists as a qualification sex. The original version of the ad also directly listed as a qualification colour and race. They took down the latter discriminatory qualifications, but left the first two in the revised ad.
Can an employer require in a job ad that a photo be sent with a c.v.? My view on that an employer can’t ask for a photo, though I haven’t seen a case on this point. If the applicant complies with the request, they are disclosing their skin colour, and an employer cannot ‘indirectly’ include skin colour as a qualification.
Now, you might think that surely an employer that wants to hire a non-white male of a certain age can just say that in an ad. You would be wrong. An employer cannot do that. That’s precisely what Section 23(1) says an employer cannot do.
It’s true that some characteristics of the applicant may become relevant later in the recruitment process, including possibly skin colour, age, and sex. But these characteristics are no fly zones at the job ad stage. At the interview stage, employers are given wider latitude. They are permitted to ask or consider characteristics related to prohibited grounds, “where discrimination on such ground is permitted under this Act” (Section 23(3))
That last part is referring to the fact that there are some exceptions in the Code, situations in which employers are permitted to discriminate on prohibited grounds. For example, Section 24(1)(a) allows an “religious organization” primarily engaged in serving the interests of people who share a certain religion to give preference in employment to people of that religion. Therefore, in an interview, the recruiter could ask a person’s religion. However, the employer could not ask about religion in the job advertisement.
The idea is that no one should be weeded out at the job ad stage based solely on a prohibited ground. The reason is that the Code requires, in many circumstances, that a discussion occur about whether an applicant can be accommodated. If employers can discourage applicants from even applying for a job by throwing in qualifications linked to prohibited grounds that automatically disqualify the applicants, the discussion about accommodation will never occur.
“Reasonable and Bona Fide” Qualifications
The CBC wants a young male (23-35) for this job. That would be a violation of Section 23(1). Now, let’s assume they didn’t list those criteria in the job ads, but in fact, they only really consider males aged 23-35 when the interviews start. I’m just slightly older than 35, so I’m not considered. Do I have a complaint? Do women?
Now the key section becomes s. 24(1)(b). That sections says it is not a violation of the Code if an employer discriminates on the basis of age or sex if age and sex “is a reasonable and bona fide qualification because of the nature of the employment”. But Section 24(2) then says that a qualification is not reasonable and bona fide if the person could be accommodated without “undue hardship”.
Note, by the way, that discrimination on the basis of ‘race‘ is not included in the Section 24(1)(b) exemption. So an employer cannot claim a right to hire only non-Caucasions, unless they do so under a “special program” (see below), which requires state pre-approval. The other possibility is that the employer fits itself into the Section 24(1)(a) exemption, which would permit an organization that serves primarily non-Caucasions to give preference to non-Caucasions. It’s a stretch to think that entertainment companies that serve the broader public could bring themselves into that category.
All of this means that the CBC would need to show that the job requires a male between 23-35, that this is ‘reasonable and bona fide’, and that there is no way to accommodate someone that does not fit this mould, without CBC suffering undue hardship.
Do you think that the CBC could win that argument? I have my doubts, but it would be an interesting argument.
The CBC claims that it really does want a non-Caucasion, because it is promoting diversity. Is that an answer? In Ontario, it is possible for an employer to implement a special hiring program “designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights.” (Section 14) A proper ‘special program’ can create a defence for an employer accused of discriminatory hiring.
If an employer uses an illegal job ad, it is breaking the law. However, there are cases in which the Tribunal has ruled that the violation is ‘technical’ only, provided that the actual hiring decision turned out not to be based on prohibited grounds. So, if the ad says only men can apply, and it turns out that being a man is found to be ‘reasonable and bona fide’, and no accommodation is possible to enable a woman to do the job, then the Tribunal will likely rule that the employer committed a ‘technical breach’ of Section 23(1), but no remedy or only a small monetary award would be ordered.
What do you think of the idea of a ‘technical breach’ of human rights laws? Is that a sensible approach?
Can an Employer require Applicants to be Nonunion?
Uh, no. That is not in the Human Rights Code, it’s in labour relations statutes. That’s stated quite explicitly in Section 72(a) of the Ontario Labour Relations Act. In the Canada Labour Code, section 94(3)(a) is the section that prohibits an employer from refusing to hire a union member, or from giving preference to a nonunion worker. These sections prohibit what were known in the old days as ‘yellow dog’ contracts, which made employment conditional on the employee agreeing to not become a union member.
Is there some special exemption for the CBC from the standard rule that a person can’t be discriminated against on the basis of union affiliation?