Avoiding Recruitment Discrimination Claims

How to ensure your hiring practices do not expose your company  to discrimination complaints.

How to ensure your hiring practices do not expose your company  to discrimination complaints.

Professor Philip Oreopoulos recently published a study titled “Why Do Skilled Immigrants Struggle in the Labour Market? A Field Experiment with Six Thousand Resumes” (Download the study), in which he observed that immigrants struggle in the domestic labour market – both in terms of unemployment rate and salary level – when compared to their equally qualified Canadian-born counterparts.

Professor Oreopoulos’s study makes three main conclusions:

1. Canadian-born individuals with English-sounding names are much more likely to receive a callback for a job interview after sending their resumes compared to foreign-born individuals, even among those with foreign degrees from highly ranked schools, or the same job experience but acquired outside of Canada.

2. Employers value Canadian experience far more than Canadian education when deciding to interview applicants with foreign backgrounds.

3. Employers discriminate substantially by name; specifically, employer response rates to submitted resumes drop 40% when switching from a Canadian resume with a common English name to one with a common Indian, Chinese, or Pakistani name.

As Professor Oreopoulos suggests, these results might be based on employers believing that candidates with foreign names or from foreign locations have a higher chance of being linguistically or culturally challenged. Alternatively, employers may have a personal preference to hire individuals of similar ethnic or language backgrounds. Whatever the reason, it is important to keep in mind that the Human Rights Code prohibits discrimination in employment advertising and hiring, based on any of the prohibited categories, which include race, colour, ancestry and place of origin. Therefore, employers will want to ensure that their hiring practices do not expose them to discrimination complaints by unsuccessful applicants.

In order for an individual to successfully make out a claim of discrimination at the hiring stage, he or she must first show, on a balance of probabilities, that discrimination has occurred. However, if the employer is able to show some valid, non-discriminatory explanation as to why another individual was hired, the claim under the Human Rights Code will fail. For example, in Oxley v. British Columbia Institute of Technology, the complainant, who was of Cree ancestry, applied for a position as an Iron Worker with BCIT. Although he applied in a timely fashion, he was not granted an interview. While Oxley was able to make out a case for discrimination in the first instance, BCIT was able to show that the candidates ultimately hired for the position were more qualified. Oxley’s claim was thus dismissed.

In Szarko v. Vancouver Coastal Health Authority and Grewal, there was a similar result. The complainant, who was of Polish descent, alleged that she had been passed over for a position as a casual cardiac technologist because the supervisor of the department preferred persons of Asian origin. The complainant was able to establish a case of discrimination in the first instance, in that she was qualified to be hired for the position, was not hired and someone not better qualified but of a different ethnic background was hired. However, the employer was able to show a non-discriminatory reason for the complainant not being hired and thus the claim was dismissed.

While BCIT and Vancouver Coastal Health Authority were successful in the end, they each still had to deal with a complaint, costing those employers time and expense. Therefore, it is still a good practice to follow the following advice when dealing with recruitment, in order to avoid claims of discrimination:


1. Before you advertise, know the requirements of the job you are trying to fill and the qualities an ideal candidate will possess. If you later reject applicants for the position, you will be able to note specific and non-objectionable reasons why that applicant was not suitable.

2. Avoid specifying skills (such as proficiency in a certain language) that are not essential for the job.


1. If you use a standard application form, only ask for information that is essential to the selection and hiring process and decision making. Requesting the applicant’s race or ethnicity is not acceptable. However, requesting a list of the languages in which the person is proficient is acceptable as long as there is a valid (i.e. work related) reason for doing so, such as customer demand.

2. Be wary of using any application form created in the United States. They do not have the same human rights laws, and in some cases, they also have statutes which require certain data be gathered that in Canada would be unlawful (ethnicity, race, religion, criminal convictions).


1. Conduct interviews with two or more interviewers present to provide a third person witness to the questions asked and conduct of the interview.

2. Have a pre-set list of questions that are asked of everyone.

3. Make notes with respect to the interview (procedure followed, answers received and observations about the applicant), and retain the notes.

Decision making

1. Make notes about how you arrived at your decision to hire or not hire an applicant.

2. Retain copies of your notes, the application form and resume for each applicant.

3. Communicate your decision to each applicant. Offer brief, objective reasons why that person did not get the position.