Blimey, the Ontario Science Centre is planning a Harry Potter exhibit! And it is hiring staff for the exhibit, including people who will wander the exhibit carrying 10 pound lanterns and speaking “authentic British”. Hhhmmm. Employment law students, are your magical human rights radars tingling yet?
As part of my ongoing series on discrimination laws and human rights legislation, consider this job posting for the Harry Potter staff.
Among the expressed requirements for this job are the following:
- You must be able to maintain an authentic British accent for the duration of your shift.
- You must be able to continuously carry and hold a lantern weighing up to 10 pounds while delivering lines from a script.
- The ad notes also that: “You will be on your feet at all times while working.”
- The ideal candidate will have as much schedule flexibility as possible to work mornings, afternoons, and some evenings, on any days of the week and weekends, from April 9, 2010 through late August 2010.
The law is very strict when it comes to job advertisements. The government does not want employers weeding people out in the job ads on the basis of prohibited grounds. So, has the OSC posted an illegal ad?
Take a careful look at Section 23(1), which is the section that governs job advertisements:
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 seems to say very clearly that employers cannot include job requirements in an ad that indirectly discriminate against potential applicants on the basis of a prohibited ground, doesn’t it?
Do you see any indirect discrimination, that is, a requirement that applies equally to everyone, but that tends to disqualify some people because they have a characteristic that is protected by a prohibited ground? Well, there are a number of possibilities, aren’t there? What sorts of people are likely to be unable to stand for an entire shift, while carrying a 10 pound lantern? Do you think the ability to speak with an authentic British accent might be difficult for people from non-English speaking countries? What sorts of people might be less likely to be able to work the sorts of flexible hours required (or at least preferred)?
Do you see discrimination in any of these job requirements on the basis of the prohibited grounds in Section 5 of the Code?
Now, if the job requirements in the ad do discriminate, does the OSC nevertheless have a defense? I note that the ad states way at the bottom, the following:
“Accommodation will be provided in accordance with the Ontario Human Rights Code. “
Ahh. Does that get the OSC off the hook, if their job ad does discriminate on the basis of prohibited grounds?
Think about this. If you are a person in a wheelchair, for example, with a strong Jamaican accent, and you love Harry Potter and would love this job, would you have a strong human rights complaint that this job ad illegally discriminates against you? Has the OSC protected itself by adding the ‘we will accommodate you’ line in the ad?
My thanks to employment lawyer Andrew Langille for sending along this ad to me.