Human Rights in the Workplace

Clearing the air: criminal records, employment and the Manitoba Human Rights Code

For some reason, I've run across a bunch of articles lately which make the bold statement that Manitoba's human rights legislation offers no protection to employees or job applicants charged with a criminal offence or who have a criminal record.  Since that is not the case, I thought I'd try to 'clear the air.'

Whether a job applicant or an employee is given any protection under human rights legislation relating to criminal charges or convictions very much depends on where you live in Canada.  In some jurisdictions across the country, and federally, the applicable human rights legislation contains a specific reference to persons who have been criminally charged and/or who have criminal records and provides them with varying protections.  Here's a sampling:

The Ontario Human Rights Code contains the following provision:

Employment

5.  (1)  Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

Note: Ontario defines "record of offences" as referring to a Criminal Code conviction for which which a pardon has been granted or a conviction for a provincial offence.

The Yukon Human Rights Act has this section:

7.    It is discrimination to treat any individual or group unfavourably on any of the following

grounds

        ..........

(i) criminal charges or criminal record..."

Here's what the British Columbia Human Rights Code says:

13  (1) A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of employment

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

You'll note, if you read closely, that Ontario, BC and the Yukon all treat the issue of criminal charges and/or convictions in the area of employment very differently.  In Ontario, you have to have a pardon before you receive protection.  In BC, employment decisions cannot be made on the basis of a person's criminal conviction if the conviction is unrelated to the person's employment.  In the Yukon, the protective reach extends to persons who either have criminal charges or records.  It is very important that you be aware of the specifics of the legislation that applies to you as an employer.

So, what's the situation in Manitoba?  In Manitoba's Code there is no specific reference to the fact that person's with criminal records or who have been charged criminally have any protections.  To, perhaps, muddy the waters, the Code also contains a provision that says:

Criminal conduct excluded

9(4) For the purpose of dealing with any case of alleged discrimination under this Code, no characteristic referred to in subsection (2) shall be interpreted to extend to any conduct prohibited by the Criminal Code of Canada.

The reference in s.9(4) to "subsection (2)" refers to the specific characteristics that are protected under Manitoba's legislation and which I've discussed here before (eg. religion, age, sex, ancestry, disability, etc.).  Ok, so based on s.9(4), I guess persons with criminal records aren't protected?  Wrong.

Manitoba's Code contains four general definitions of discrimination.  Three of those definitions link specifically to the protected characteristics.  But, the fourth definition makes no reference to the protected characteristics at all.  This is the "unspecified grounds" provision and here is what it says:

9(1) In this Code, "discrimination" means

(a)    differential treatment of an individual on the basis of the individual's actual or presumed membership in or association with some class or group of persons, rather than on the basis of personal merit.

And this, my friends, is where people who believe they have been discriminated against on the basis of a criminal charge or conviction can attempt to seek redress under Manitoba's legislation.  So, for example, if you, as an employer, choose not to hire someone simply because they have a criminal record, rather than assessing their ability to do the job on the basis of their personal merit, that decision could trigger a successful human rights complaint under the Manitoba Code.

Manitoba's Human Rights Commission has specifically addressed how they will approach the interpretation of section 9(1) in its Policy Relating to Criminal Records:

"Alleged discrimination in employment on the basis of a criminal charge or conviction may constitute the basis of a complaint under section 9(1)(a) of

The Human Rights Code.

Whether a charge or conviction has a bona fide relationship to the occupation or employment will depend upon all of the circumstances of the individual case, including, at least, the following:

(i) Does the behaviour that is the subject of the charge or conviction, if repeated, pose a significant threat to the employer’s ability to carry on its business safely and efficiently?;

(ii) What were the circumstances of the charge and the particulars of the offense involved: e.g. how old was the individual when the events in question occurred; were there extenuating circumstances?;

(iii) How much time has elapsed between the charge or conviction and the employment decisions? What has the individual done during that period of time? Has s/he shown any tendencies to repeat the kind of behaviour for which s/he was convicted? Has the individual shown a firm capacity to rehabilitate him/herself?;

(iv) Although not determinative in and of itself:

a. has a pardon been secured in relation to the offence?

b. have all the conditions been met in relation to an offence for which a conditional discharge was received?

(v) Having considered all of the above, was the severity of the particular action taken against the Complainant warranted by the nature and circumstances of the charge or conviction?

The onus is on the employer to establish that the existence of the criminal charge or conviction is a reasonable disqualification.

The Commission recognizes an individual’s fundamental right to be presumed innocent until proven guilty subject to only such reasonable limits as prescribed by law as can be demonstrably justified in a free and democratic society. Therefore, where the discrimination is based on a criminal charge, as opposed to a conviction, the evidentiary onus on the employer will be greater. In addition to the factors (i) to (v) above, the employer must clearly demonstrate that the risk to the public, co-workers or the employer’s business is so severe that the mere possibility of a conviction warrants the discriminatory employment decision."

So, if you are a Manitoba employer, and you happen to have read some of the articles I've been reading lately which say employers here are not impeded from refusing to employ someone if they have been criminal charged or convicted please ignore what you've read.  Although perhaps not as obviously as the Yukon legislation, in the area of employment, the Manitoba Code does provide broad protections to persons who have either been convicted of a criminal offence or who are facing criminal charges.

 

 

PBS investigation targets teen sexual harassment at work

Tomorrow (Friday Feb 20), PBS will be airing a special investigation report about the sexual harassment of teens in the workplace (if you click the link you can see and hear a video preview of the special).  Although the report details the stories of young women in the United States, the subject of teen harassment in the workplace is just as topical in Canada. 

According to the PBS site, the report:

"..tracks the journey to justice for teens [like those whose stories are documented in the show] and examines how the issue impacts hundreds of thousands of teenagers across the country -- many of whom don't know how to report workplace abuse, or to even recognize when their bosses cross the line."

While I don't have any statistics in hand to indicate the prevalence of teen sexual harassment in the workplace in Canada, certainly, human rights commissions in this country have it on their radar screen.  The Manitoba Human Rights Commission, for example, has targeted youth for a number of years now by holding annual Youth Conferences designed to ensure youth in Manitoba are adequately educated about what their human rights are and how to go about enforcing them.  Moreover, the Commission has on its website a useful publication entitled "The Rights of Youth: On the Job" which details, among many other issues of importance to youth, how to recognize harassment and what to do if it is being experienced in the workplace.

Using social networking sites in hiring process: smart move or human rights trap? Part Three

Today marks our last installment in the series on whether employers should be using the Internet to screen job applicants.  (Well, at least it's my last post for now.  As I've mentioned before, this is an emerging area of the law so I'm sure there will be more to talk about down the road).  If you missed the first two posts of the series, you can check out Part One here and Part Two here.  I'd also urge you to read the comments posted by Dan Michaluk to Part Two (scroll down to the end of the post and click on "comments").  His comments aligned very well with my thoughts going into this post and they also prompted me to press my thinking further so I thank him for taking the time to contribute.

I'll be honest, when I was first asked by one of my readers about whether employers should be doing Internet-based or social networking-based searches in the recruitment process my initial response was to recommend the opposite of Nike's famous slogan and say "just don't do it".  Certainly, in Part Two, I set out a whole host of legal problems that can arise from doing Internet searches in the recruiting process so it would be completely reasonable to suggest you should avoid them like the plague -- at least until we have further direction from the law.  At this point in my thinking process, I still tend to sit closer to that side of the fence.

But, I also have to be pragmatic.  Given that there are employers in Canada already doing these searches (remember that 12% statistic we talked about in Part One), given this is a trend that will likely only increase as time goes on (as shown by what's already occurring in the US) and given that I know the lure of a quick Google search may be just too much for some of you to resist, let's move to looking at this issue from a practical perspective. 

If you think you might want to take a peek at what pops up on an Internet-based search of your job applicants, what are the things you should be thinking about in order to minimize your legal liability?

Here are my TOP EIGHT TIPS:

1.    Be Realistic

Before you embark on a Google or social networking site search, I think it's important for you to reflect on whether, given who you are as an employer and the nature of the job you are attempting to fill, you really need to conduct these types of searches in the first place.  If you're a mom and pop grocery store looking for a part-time bagger, your approach might be very different than, say, if you're the President of the United States looking to cull together your White House team. 

Going back to Part Two, you'll want to ask yourself whether a job candidate's online presence, whatever it may be, could somehow come into conflict with the job you are considering hiring them for.  If you can't connect the dots, you shouldn't be doing these types of searches. 

Remember: just because the information may be out there doesn't mean you need to access it.

2.     Maintain the Upside-Down Funnel

Remember in Part Two I talked about how it is always advisable to think of the the information-gathering process relating to your job recruits as an upside-down funnel.  You should be ensuring that you are only asking what you need to at each stage to determine whether your candidate moves forward.  Too much information too soon plus an adverse hiring decision will increase the chances you'll be faced with a discrimination claim.

With that in mind, it is my view that any Internet-based searches should be done after you have made your candidate a formal job offer. 

3.    Be Upfront

This point ties in closely with point #2.  I think you should be clear with all of your job applicants that if they reach the end of your recruitment process and are offered a job, you will be conducting a full background check.  You should indicate what that background check will consist of, including Internet-based searches. 

By disclosing this from the get-go you demonstrate that you're not doing anything "behind anyone's back", and you might even have job applicants who weed themselves out because of your disclosure.  That might be a good thing (if they, perhaps, have put something out on the web that might not make them a good fit for your organization) or not (you may get quality candidates who just aren't comfortable with employers who do these searches regardless of whether there is anything negative out there about them to find).

4.    Establish a written process

The saying "the best defence is a good offence" applies as equally to mitigating your legal risk as it does to the sports world.  By this I mean that it always helps to have a written document that you can point to in your defence against litigation setting out what you did and didn't do in relation to any particular process you adopt in your workplace.

Here, you'll want to give thought to setting down in writing the following:

a.    what Internet-based searches will be run;

b.    what information yielded by those searches will be examined and why;

c.    how you will assess what may be discovered;    

d.    what use will be made of that information;

e.    how you will document any information relied on for the purposes of the hiring decision.

You'll really want to give a lot of thought to developing your search criteria so you can show a human rights commission, tribunal or civil court that you weren't just going on a fishing expedition and that there are tangible job-related reasons why you conducted these searches in the first place.   Most importantly, from my perspective, you always want to be able to demonstrate that you only looked into what was needed to appropriately judge your job applicants on the basis of personal merit.  The more tightly honed your search criteria, the greater the likelihood that it might be found reasonable upon review.

In terms of record-keeping, as pointed out by Dan Michaluk in his comments to my Part Two post, you'll want to retain a hard copy of any information generated by Internet-based searches that meets your search criteria.  The hard copies should be placed on your recruitment file.  As Dan notes:

"This should keep the decision clean of irrelevant and risky information and should also eliminate any risks of getting into disputes about production of search-related forensic information."

5.    Have someone other than the decision-maker do the searches

To ensure that the person who is making the decisions as to who gets hired and who doesn't is only able to base the decision on the best (read: legally sound) and most relevant information it is advisable to insulate him or her from any Internet-based searches being done.  In other words, the decision-maker should never do the searches.  Keeping the decision-maker insulated in this fashion helps insulate the hiring decision from legal criticism.

Of course, you'll want to ensure that whoever does do the searches is fully apprised of your written process under point #4, and is clear on what they need to do to abide by the law when conducting the searches and determining what information should and shouldn't be passed onto the decision-maker. 

6.    Be Consistent

Ensure that you apply the Internet-based background checks equitably to all candidates to whom you've made a job offer.  If you don't, you might find yourself faced with a discrimination claim on that basis alone.  

Similarly, once you embark on doing these types of background searches either for all or just particular jobs in your workplace (again, keep in mind point #1 above), then do them consistently.  If you do them some times and not others, it begs the question why.  And a human rights commission may well be interested in finding out.

7.    Be as fair as possible

I think it would bode well for an employer to give job candidates the opportunity to respond to any concerning information generated by the Internet-based background check.  Given the concerns I raised in Part Two about ensuring the accuracy of information gathered on an Internet-based search, it seems to me that this would not only be fair but a wise approach as well. 

8.    Document the decision

Once the Internet-based searches are completed and any pertinent information given to the decision-maker in your organization, ultimately, the final decision on hiring should be set out somewhere in clear terms.  Explain your rationale for choosing a particular candidate, rejecting another.  You want to be prepared to establish why you made the decision(s) you did and to show that inappropriate considerations, specifically prohibited grounds under human rights legislation, played no factor.

Parting Thoughts

While I started this series of posts in response to a question from a reader, in the end, my purpose turned out to be much broader than that (if the length of my posts didn't tip you off to that before, now you know!).  Once I started looking into this issue and learned that there were Canadian employers out there already doing these types of searches, it became concerning to me that they may well be doing them without fully understanding their legal risks.

I hope that I have been able to arm you with information so you know what the issues are (at least as they appear to be at this early stage) and that I have spurred you to think about how to address them if you choose to make the decision to venture into conducting Internet-based searches on your job candidates.  At the very least, you should think first, do second and most importantly, do after you have received the appropriate legal advice specific to your situation.

Until next time!