Diversity & Inclusion
Writing a job description? Avoid these legal pitfalls
By Todd Humber
I was recently asked by the head of our HR department to review a job posting for an opening in our sales team.
I’m a writer, so words come easy most days. But crafting the perfect pitch to land the ideal candidate for a critical role is more challenging than those outside the realm of human resources and recruitment might understand.
I’d sooner write a novel. In fact, I’d sooner write a column – which I’m doing at the moment. Sorry, Michelle.
There are so many pitfalls to avoid in recruitment that literally every word matters – you can run afoul of human rights legislation or turn off entire candidate groups with a slip of your finger on the keyboard.
It’s not political correctness run amuck. Writing an inclusive, honest job description will deepen your talent pool. If you don’t believe great people make all the difference in your business, you will not be in business for long.
The Ontario Human Rights Commission (OHRC) offers some solid guidance around setting job requirements and advertising openings.
Pitfalls to avoid
One example of a job requirement to avoid is a statement that male employees must be “clean shaven.” By default, that would discriminate against Sikh men – who, according to their religion, are not allowed to shave.
But not all discriminatory policies will run afoul of human rights legislation. If an employer can prove the rule is reasonable and “bona fide” – to use a legal phrase that essentially means it is rational and established in good faith – then the policy may stand up to scrutiny.
Using the clean-shaven example, the OHRC points out an employer may have instituted a “clean shaven” rule because it is involved in food preparation and is concerned about hygiene. In that scenario, the employer would need to go one step further and prove accommodating a worker with a beard would cause it “undue hardship.”
In this scenario, insisting workers with a beard wear a net to cover it is reasonable and would not cause undue hardship – so the clean-shaven policy would ultimately be ruled discriminatory.
The bona fide test
Employers may be confused about what constitutes a “bona fide” occupational requirement. Thankfully, in 1999 the Supreme Court of Canada provided a clear three-step test in its Meiorin decision.
The Alberta Human Rights Commission summed it up thusly:
Once the complainant has shown the standard of requirement is prima facie (at first view) discriminatory, the employer must prove, on a balance of probabilities the standard:
- was adopted for a purpose that is rationally connected to job performance
- was adopted in an honest and good faith belief that the standard is necessary for the fulfillment of that legitimate purpose
- is reasonably necessary to accomplish that legitimate purpose-This requires the employer to demonstrate that it is impossible to accommodate the employee without the employer suffering undue hardship.
Other items to avoid
The OHRC provides a comprehensive list of potentially discriminatory requirements that should be avoided or only implemented after careful scrutiny. These include:
- fitness assessments
- testing and simulations (psychometric and psychological testing can favour the dominant culture)
- Non-essential physical demands
- Requirement to have a driver’s license
- Language and fluency
- Canadian experience
- Inflated job requirements
- Frequent travel
- Recent graduates or students
- Citizenship requirements
A job posting may seem like an easy thing to bang out and cross off the list. But you need to scrutinize it closely before it goes out the door, lest you turn off potential candidates and run afoul of human rights legislation.
Taking a few extra minutes to pore over it is far easier than facing a discrimination lawsuit.