Gone are the days of posting job ads in the newspaper. Like most things these days job recruitment takes place primarily online. It is important for employers to know how to comply with the law in the online environment – human rights, accessibility and in some cases privacy laws will apply. In general, the laws of the jurisdiction where the business is located will govern, though this may be something to consider where recruiting widely for different offices, or where employees will be working remotely.
AODA and Accessibility
Firstly, recruiters needs to be aware of accessibility standards when drafting job ads. For business in Ontario, Ontario’s Accessibility for Ontarians with Disabilities Act (AODA) sets out notice requirements with respect to ensuring that the hiring process is accessible. These include notifying applicants of the availability of accommodations during the hiring process. It is recommended that this notice be built into the language of the job ad. In the online context, the AODA also requires that information be provided in a way that is accessible. This includes standards that speak to the design of a job ad and how the digital information is navigated.
In all Canadian jurisdictions human rights standards will also apply. In Ontario, under the Human Rights Code, this means that employers cannot ask job applicants questions that would touch on a prohibited ground of discrimination. The prohibited grounds with respect to employment are:
- Ancestry, colour, race
- Ethnic origin
- Place of origin
- Family status
- Marital status (including single status)
- Gender identity, gender expression
- Record of offences
- Sex (including pregnancy and breastfeeding)
- Sexual orientation
Therefore, even in the online context – craigslist I’m looking at you – a job ad cannot require an applicant to disclose information about any of the above areas . Where an employer requests information about one of these grounds in order to make a hiring decision, they potentially open themselves to a discrimination claim. Where an applicant can demonstrate that they were not hired at least in part because of one of the prohibited grounds, an employer could be subject to damages.
In some jurisdictions there is an exception with respect to age – age in the Ontario Human Rights Code is defined at 18 year of age and older, it is therefore permissible to ask if an applicant is 18+ and, if not at least 18 years old, to ask how old they are. It is also permitted to require applicants to be of a certain age if required by the duties of the job. For example, where the job involves the service of alcohol an applicant will legally required to be 19+.
While Canadian privacy laws are spotty with respect to protecting the personal information of applicants, the following are good general principles to keep in mind:
- Individuals should be informed about why their information is being collected and how it will be used, stored and shared
- Information should be securely stored
- Information should not be kept for longer than is necessary
- The information of applicants should be kept confidential from each other – for example if there is an interview sign in sheet a new sheet should be used for each applicant so that they do not see the names of those who are also interviewing
British Columbia and Alberta have the most robust privacy laws, but businesses across Canada should consult a privacy lawyer in their jurisdiction to ensure they are complying with standards around data governance.
While it may be tempting to view the web as a wild west free-for-all, it is important to remember that the law still very much applies.