What are legitimate employment requirements?

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There is no common understanding of the skills employers or regulatory bodies are trying to assess when they impose a requirement that applicants have Canadian experience. This can be extremely frustrating for newcomers who may be qualified for a position or professional accreditation, but who have not yet worked in Canada, and are not given a chance to prove their qualifications. Many newcomers feel that the approach of many Canadian employers is “arbitrary and often needlessly penalizes them for their lack of Canadian experience and credentials.” In some cases, requiring applicants to have Canadian experience may be disguised discrimination, and a way to screen out newcomers from the hiring process. 


Some employers may mistakenly believe that the only way for a job applicant to show that they “have what it takes” to be effective or “fit” in a Canadian workplace is to show that they already have experience working in Canada. These employers may think that a Canadian experience requirement can be used as a short-cut, or a proxy, to measure a person’s competence and skills. Similarly, some regulatory bodies may believe that an applicant can only learn the Canadian norms and standards of their particular trade or profession if they have spent time working in a Canadian environment or working under the supervision of someone who is licensed to practise that profession in Canada.


Even where employers and regulatory bodies may be acting in good faith, a candidate’s Canadian experience, or lack thereof, is not a reliable way to assess a person’s skills or abilities. And, imposing requirements of this nature may contravene the Code. Employers and regulatory bodies should be clear about the specific qualifications they are seeking, rather than using “catch-all” terms like “Canadian experience.” For example, if the ability to communicate effectively is what is required, they should state this clearly and give applicants the opportunity to show this skill.


A requirement for Canadian experience, even when implemented in good faith, can be a barrier in recruiting, selecting, hiring or accrediting, and may result in discrimination. Under the Human Rights Code, where discrimination is found, the organization or institution the claim is made against may establish a defence to the discrimination by showing that the policy, rule or requirement that resulted in unequal treatment is a legitimate standard, or a “bona fide” requirement.  In the Meiorin decision, the Supreme Court of Canada set out a three-part test to determine whether a standard that results in discrimination can be justified as a reasonable and bona fide one. The organization or institution must establish on a balance of probabilities that the standard, factor, requirement or rule:

 

  • was adopted for a purpose or goal that is rationally connected to the function being performed

  • was adopted in good faith, in the belief that it is needed to fulfill the purpose or goal, and 

  • is reasonably necessary to accomplish its purpose or goal, because it is impossible to accommodate the claimant without undue hardship.

 

As a result of this test, the rule or standard itself must be as inclusive as possible of individual differences, rather than maintaining discriminatory standards with accommodation for those people who cannot meet them. Even then, there may still be a need to accommodate individual differences up to the point of undue hardship. This ensures that each person is assessed according to his or her own personal abilities instead of being judged against presumed group characteristics.


For an employment or accreditation requirement, such as having Canadian experience, to be found to be legitimate or “bona fide,” an organization must show that they have made the requirement as inclusive as possible and that they have taken steps to accommodate applicants covered by the Code. This would mean assessing people on an individual basis, and would include considering non-Canadian experience and other qualifications.


The procedure used to assess and achieve accommodation is as important as the substantive content of accommodation. Some of the questions to be considered are:

 

  • Did the person responsible for accommodation investigate alternative approaches that do not have a discriminatory effect?

 

  • Why were viable alternatives not implemented?

 

  • Can there be different standards that reflect group or individual differences and capabilities?

 

  • Can an organization’s legitimate objectives be met in a less discriminatory way?

 

  • Is the standard designed to make sure the desired qualification is met without placing undue burden on the people it applies to?

 

  • Have all the people who are obliged to assist in the search for accommodation fulfilled their roles?


Recruitment, selection, hiring and accreditation decisions should not be made based on stereotypes about people or assumptions about the quality of work experience not gained in Canada. Employers and regulatory bodies should not treat a lack of work experience in Canada as equivalent to negative work experience or a bad employer reference, for example. 


Where an applicant lacks Canadian experience for reasons related to a Code ground, employers and regulatory bodies should look at other available information to make a reasonable and fair assessment.


Applicants should be assessed on an individual basis, rather than being screened out based on general rules. When looking at the accreditation of foreign professionals, tribunals have applied the test in Meiorin and found evaluation standards to be bona fide where they are not based on assumptions about the superiority of Canadian training, but rather have used individual assessments that have regard for the actual training received.


All prior work experience should be assessed, regardless of where it was obtained. Employers should seek job-related qualifications (for example, the ability to plan a project and complete it to required timelines or the ability to show familiarity with Canadian laws, industry norms or standards). Applicants should be given the opportunity to establish relevant skills and experience in a variety of ways. The essential question is whether the applicant is qualified to do the job at hand.
Example: Rather than imposing a general Canadian experience requirement on job applicants, or insisting that they have established local business contacts before they are hired, an advertising agency provides job applicants with the opportunity to show their ability to generate business.


Example: Instead of requiring all foreign-trained applicants to undergo two years of practicum training to receive a professional designation, a regulatory body provides the opportunity for applicants to show their technical skills and knowledge in a practical, competency-based test. 


This approach is consistent with case law dealing with assessing the credentials of foreign-trained professionals. In Bitonti v. British Columbia (Ministry of Health), a case that dealt with the qualifications of international medical school graduates, the tribunal recognized the importance of having a mechanism where graduates can have “their skills assessed based on merit rather than assumption and that they be given an opportunity to compete fairly” with graduates of Canadian medical schools. The tribunal found it problematic that the applicants were not provided with “the ability to demonstrate the equivalency of their qualifications.”


Decision-making processes related to hiring or accreditation should be as transparent as possible. Job ads, for example, should state clearly the specific skills and work experience that are required for each of the duties associated with the position, and job requirements must be related to the position. Job applicants should be given an opportunity to show their abilities during interviews and even in a simulated job setting.


Employers who routinely refuse to hire people who are identified by specific Code grounds may be motivated by negative attitudes, biases and/or stereotypes. In the context of employment, actions based on discriminatory stereotypes are a violation of the Code. Employers should rely on objective and standardized criteria when choosing applicants to minimize the chances that discrimination will play a role in the selection process. Assessments based on whether a person would “fit” into the culture of a workplace, for example, open the door for cultural biases and stereotypes to influence decision-making, and may exclude Code-protected people. Where an employer receives multiple job applications, they should be prepared to show how they chose the successful applicant.


The onus is on the employer or the regulatory body to show that a requirement for people to have work experience in Canada is bona fide and reasonable. An organization will not be able to show this unless they can show that they have taken a flexible approach, assessed the individual’s other types of experience, and weighed this against other requirements.