Workplace Wire

It’s a well-documented fact that recent immigrants face high rates of both underemployment and unemployment.  Statistics Canada reported that between 1991 and 2006, the proportion of immigrants with a university degree in jobs with low educational requirements has increased, and that the requirement for Canadian experience is the most common barrier faced by newcomers looking for meaningful employment in Canada.  Newcomers face the catch-22 of not being able to secure a job because they don’t have Canadian experience, and not being able to get Canadian experience without a job.  The Ontario Human Rights Commission has recently taken aim at this problem by launching a new policy directive aimed at removing the “Canadian experience” barrier.

In its Policy on Removing  the “Canadian experience” Barrier, the Commission  has noted that some employers use the “Canadian experience” requirement as a short-cut to measure a job applicant’s competence and skills, with the consequence of screening out qualified recent immigrants.

The Commission notes that there is no common understanding of the skill set that employers and regulatory bodies are measuring when they ask for Canadian experience , and that a candidate’s Canadian experience, or lack thereof is not a reliable way to assess a candidate’s skills and abilities.

The Commission has taken the position that a strict requirement for Canadian experience is prima facie discriminatory, and can only be used in very limited circumstances.

Employers and regulatory bodies must show that a requirement for Canadian work experience is a bona fide occupational requirement, based on the legal test known as the Meiorin test.  In particular, employers and regulatory bodies would have to show that work experience in Canada is a legitimate work requirement connected to job performance, and that providing accommodation would cause undue hardship.  This requirement would likely only be met in the most exceptional of circumstances.

While the Commission’s policy is not law, the Commission’s policy is consistent with the case law developed by the Human Rights Tribunal, labour arbitrators and the Canadian courts on the avoidance of indirect discrimination in the recruitment, selection, hiring and accreditation process.

To avoid violating human rights legislation, employers and regulatory bodies should keep in mind the following best practices:

• Do not require Canadian job experience in a job posting or ad, or ask for qualifications that could only be obtained by working in Canada.
• Be clear about the specific qualifications and experience you are seeking instead of using catch-all terms like “Canadian experience”.
• Only ask about job-related qualifications (e.g., communication skills, ability to manage projects, familiarity with Canadian industry standards, etc.).
• Assess  candidates on an individual basis  and consider all relevant work experience regardless of where it was obtained.
• Do not make assumptions about the quality of work experience gained outside of Canada.  In particular, do not discount or devalue foreign work experience.  Find out about the candidate’s job-related skills and qualifications.
• Use objective and standardized criteria when choosing candidates to minimize the chances that discrimination will play a role in selection.
• Be prepared to show how you chose the successful applicant.

For more information, contact Lia Chiarotto at lchiarotto@heenan.ca  or 416-643-6854