THE TASK of recruiters is by no means an easy one. It is a calling for hardworking, skilled, and diligent people. Not a profession for the faint of heart. In searching for talents to staff their organizations, the ultimate goal of recruiters to achieve a person-job fit entails many challenges. These challenges require them to draw strengths from all the different facets of their training. From the job posting through the interviews to the background checks, every phase of the selection process must be conducted in a non-discriminatory manner. Succinctly stated - every aspect of a selection process must be strictly job-related.
OCCASIONALLY, some challenges will arise that will test the recruiters’ knowledge and understanding of not only employment law but also human rights law. Every jurisdiction in Canada has human rights law that prohibits employers from discriminating against employees and applicants on proscribed grounds including race, place of birth, and nationality. In simple terms, no organizations should discriminate in its employment practices and policies. Although this may seem like a simple and straightforward legal obligation, it must be noted that even for the legal beagles, the language of the law may not always be straightforward. This is because some discriminatory practices are direct, while others are indirect thus making it difficult for inexperienced recruiters to notice that their actions or practices are discriminatory.
AN ASPECT of a selection process where recruiters could easily run afoul of the anti-discrimination law is the language of their job posting. Occasionally, some job postings would contain requirements that, though are motivated by legitimate business concerns and are neutral on the surface, nonetheless, they may result in disproportionately harmful consequence for some applicants based on the proscribed grounds. Too often, indirect discriminatory language appears in the job requirements for advertisements for the role of legal counsel.
IN AN ATTEMPT to ensure that only people who are licensed to practice in Canada will apply,
IT'S WORTH stating that the path to becoming a licensed lawyer in Canada involves a two-steps process. The first is that the applicants must possess a law degree acceptable by the law society of the jurisdiction they want to practice and the second is that the applicant must apply to one of the 13 law societies in Canada. Against this background, people who obtained their law degree from a non-Canadian university must first apply to the National Committee on Accreditation (NCA) of the Federation of Law Societies of Canada to get their foreign degree assessed. After the assessment, the candidates will be asked to take an exam in any area of law that they have deficiencies. It is after they have successfully undertaken the exam that they will be issued a Certificate of Qualification (NCA Certificate) certifying that the holders have demonstrated their legal qualification is comparable to that obtainable at the law faculty of a Canadian university. It is this NCA Certificate that entitles foreign trained applicants to apply to the law society of their chosen. Clearly, the law societies set the requirements for admission to the Canadian bars and being a graduate of a Canadian university is not a requirement.
IF AN ORGANIZATION stipulates that an applicant for the position of legal counsel must have attended a Canadian law school, then it might have inadvertently excluded a certain class of people based on their race, color, nationality or place of birth. In the face of a legal challenge, the employer will need to establish that the alleged discriminatory requirement is a bonafide occupational requirement. Historically, Canadian courts have interpreted this defense and other defenses to discrimination in a narrow manner. Thus, it is very unlikely that the employer will be able to discharge the herculean task of proving that the holder of a non-Canadian law school degree who has received the NCA Certificate and has been called to a Canadian bar will be less qualified academically for the position than a holder of a Canadian law school degree.
IGNORANCE of the law is not a valid legal defense. Neither is ignorance of the fact typically excusable. Apparently, an excuse by the recruiter that she is not abreast of the licensing process for lawyers in Canada will not change the narrative from being a violation of legal requirements.
NO REASONABLE recruiter wants to get her organization embroiled in a needless litigation. Discrimination lawsuits generate bad press, which may cause reputational damage to the organization. Hence, it is advisable to keep the requirements simple by stating that the applicants must have graduated from a “recognized university.” Although the term “recognized” could be vague, but it would generally be acceptable as descriptive of accredited institutions within the range of schools acceptable by the recruiters.
THE STIPULATION of a degree from a Canadian law school for a lawyer role depicts just one of the many instances of discriminatory language that may be found in job postings. As its name suggests, “indirect discrimination” in job postings may not always be apparent to a recruiter. Out of an abundance of caution, recruiters should have the templates for their job postings reviewed by their counsel periodically to be sure they meet the applicable legal standard.
Please note that this post is provided as an information service only and the information provided in it is neither a legal advice nor a legal opinion. Readers are advised not to act upon the information provided without first seeking