Recruitment and Selection

10 October 2016

There are four major types of legislation that affect recruitment and selection in a non-unionized workplace within Alberta. Those types of legislation being: • Constitutional law • Human Rights law • Employment Equity legislation and • Labour law/employment standards and related legislation Constitutional law as a whole is the supreme law of Canada and has precedence over all other legal means; it consists of a series of Acts and orders passed since 1867 by the British and Canadian Parliaments.

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Constitutional law does not directly affect recruitment and selection activities unless the recruitment and selection practices are challenged in a Human Rights Tribunal or court. Constitutional law sets limits and conditions on what federal, provincial/territorial, and municipal governments and courts can legally do to alter employment policies and practices. Therefore, the interpretation of constitutional law has a large influence on every aspect of Human Resource Management not just Recruitment & Selection practices and programs.

Human Rights laws across Canada prohibit discrimination in both employment and the provisions of goods and services. Grounds on which discrimination is prohibited in Alberta are: • Race or colour • Religion • Physical or mental disability • Age • Sex (includes pregnancy and childbirth) • Marital status • Dependence on alcohol or drugs • Family status • Sexual orientation • Ancestry or place of origin • Source of income Human Rights legislation is enforced through human rights commissions or tribunals that have the legislated power to undertake actions that may be necessary to eliminate discrimination.

Though prohibited discrimination varies across jurisdictions, there are six which all jurisdictions agree upon: race or colour, religion or creed, age, sex, marital status, and physical/mental handicap or disability. Employment equity legislation is the plan for compensation for employment disadvantages experienced by certain groups – women, individuals with disabilities, elderly employees, etc. The legislations is to eliminate barriers and give equal opportunities to individuals in the workplace.

Through provision of consulting and education services, the Alberta Human Rights and Citizenship Commission support the development and creation of employment equity policies and programs. Employment equity is not only about fairness and leveling the playing field. It also helps attract and keep excellent employees who may otherwise be overlooked or avoided. Employment equity encourages employers to take advantage of the talents, skills and innovation that a more diverse workforce can offer.

Finally, labour laws, employment standards and related legislation sets the stage for minimum age of employment, hours of work, minimum wages, statutory holidays, vacations, work leaves and termination of employment. These laws have little impact on the recruitment practice but take part in the selection practice by affecting what the employer is looking for and what a potential employee is looking for. Employers have a legal responsibility to ensure no unlawful discrimination occurs in the recruitment and selection process.

The legislation above assists on guiding this. Direct discrimination occurs when someone is treated less favorably than another person because of a protected characteristic they have or are thought to have or because they associate with someone who has a protected characteristic. Indirect discrimination, or adverse effect discrimination, can occur when you have a condition, rule, policy or even a practice that applies to everyone but particularly disadvantages people who share a protected characteristic.

Indirect discrimination can be justified if you can show that you acted reasonably, i. e. that it is ‘a proportionate means of achieving a legitimate aim’, or bona fide occupational requirement (BFOR). A legitimate aim might be any lawful decision made, but if there is a discriminatory effect, the sole aim of reducing costs is likely to be unlawful. Being proportionate really means being fair and reasonable, including showing that one’s looked at `less discriminatory? alternatives to any decision make.

For a standard to be considered a BFOR, an employer has to establish that any accommodation or changes to the standard would create an undue hardship. When a standard is a BFOR, an employer is not expected to change it to accommodate an employee. However, to be as inclusive as possible, an employer should still explore whether some form of accommodation is possible anyhow. It is unsurprising that the culture of a particular work organization will influence selection decisions, with recruiters both consciously and unconsciously selecting those individuals who will ‘best fit’ that culture.

In some organizations recruitment policy and practice is derived from their overall strategy which disseminates values into the recruitment and selection process. Though, individuals as well as organizations seek this ‘best fit’, providing evidence that many individuals prefer to work in organizations that reflect their personal values. Decisions made in the course of recruitment and selection process should be perceived as essentially fair and admissible to all parties, including people who have been rejected.

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