September 4, 2018
Discrimination based on Citizenship: New HRTO Decision Addresses the Convergence of Immigration and Employment Law
In Haseeb and Imperial Oil Limited, 2018 HRTO 957, the Ontario Human Rights Tribunal found an employer to have discriminated based on citizenship because of a pre-employment requirement that the candidate be able to work in Canada on a “permanent basis”. Specifically, the Tribunal found that the requirement to be able to work in Canada on a permanent basis can amount to discrimination based on the ground of citizenship. While the Code does not contain a definition of citizenship, the Tribunal determined that the Code contemplated that discrimination would arise where there existed a “requirement or consideration that distinguished among individuals on the basis of either “Canadian citizenship”, “permanent residency” status or “domicile in Canada with intention to obtain citizenship”.” Because of this finding, the Tribunal determined that hiring practices and interview screening processes of classifying individuals as “eligible” and “ineligible” based on the ability to work in Canada on a “permanent basis” amounted to discrimination.
The employer in this case had interviewed engineering candidates for an entry-level position. The employer had a practice throughout its screening process to inquire into the candidate’s ability to work in Canada on a permanent basis. The candidate, and Applicant in the HRTO claim, was an international engineering student, who had obtained a student work permit which permitted him to work on campus and during breaks between academic terms. However, he was not eligible to obtain a postgraduate work permit (“PGWP”) until after graduation. The PGWP would have permitted him to work for any employer in Canada for 3 years. The candidate anticipated that he would be able to obtain permanent residency status within those 3 years. The candidate was given an interview, and, at the time of the interviews, he misrepresented his work status to the employer and claimed that he had an ability to work in Canada on a permanent basis. The candidate was offered the position, subject to the condition that he provide proof of his eligibility to work in Canada permanently. When he failed to provide such proof, the job offer was withdrawn.
The employer asserted that it was the candidate’s dishonesty during the interview process that led to the job offer being rescinded. The candidate responded that the Tribunal was required to take into account the fact that the root of his dishonesty was tied to the pre-employment requirement to demonstrate his ability to permanently work in Canada. The Tribunal agreed with the candidate and determined that “[a]ny consideration of the applicant’s dishonesty must be viewed in context: he misrepresented his eligibility to work permanently in order not to be categorized by the employer as “ineligible” for a permanent position before his skills and experience were evaluated by the employer”.
The employer also argued that the requirement for candidates to be eligible for permanent residency amounted to a bona fide occupational requirement, a requirement that is necessary for the performance of the job. The Tribunal rejected this argument, on the basis that the employer’s hiring policy was directly discriminatory in that it effectively imposed an outright ban on hiring international candidates. The Tribunal noted that a bona fide occupational requirement defence is only available in instances where the discrimination experienced is the result of the application of a neutral practice or policy – in other words, indirect discrimination.
Employers should review their hiring policies in light of this new decision and be cognizant of possible claims of discrimination based on citizenship.
Employers with questions or concerns about the effect of this decision on their current practices are encouraged to contact a Mathews Dinsdale lawyer .