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Queen's University
 

Removing the “Canadian Experience” Barrier: OHRC’s new policy

Source: workplacewire.ca and OHRC website

The Ontario Human Rights Commission has released a new policy which maintains that having a strict requirement for Canadian Experience is prima facie discriminatory against newcomers who are often excluded from positions that reflect their educational background and professional competencies. 

Immigrants to Canada face six barriers:

1)     Employers not recognizing foreign credentials and experience

2)     Language and communication difficulties (particularly relating to occupational jargon)

3)     Employers not helping them integrate into the workplace and not providing job-related learning opportunities

4)     Being rejected for positions because they are thought to be “overqualified”

5)     Arbitrary requirements for “Canadian experience”

6)     Outright discrimination

Requirements for Canadian Experience are now considered to be prima facie discrimination

While recognizing the importance of all six barriers, the Commission’s policy focuses on the fifth, i.e. “arbitrary requirements for “Canadian experience".  The policy underscores that this requirement can be used “as a short-cut, or a proxy, to measure a person’s competence and skills”.   Even if this is not the case, and the requirement has been adopted in good faith, the Policy states that Canadian experience is “not a reliable way to assess a person’s skills or abilities” and that, in fact, “imposing requirements of this nature may contravene the Code” (p. 11).  Employers who continue to require that their applicant have Canadian experience will be forced to establish that “Canadian experience” is bona fide occupational requirement using the Meiorin three-part test. They will therefore have to show that the requirement “

Legal Test for Bona Fide Occupational Requirements

1)     Was adopted for a purpose or goal that is rationally connected to the function being performed

2)     Was adopted in good faith, in the belief that it is needed to fulfill the purpose or goal

3)     Is reasonably necessary to accomplish its purpose or goal, because it is impossible to accommodate the claimant without undue hardship

Legal Test for Undue Hardship

To determine the possibility of accommodation to the point of undue hardship, the employer would need to consider the following questions:

1)     Did the person responsible for accommodation investigate alternative approaches that do not have a discriminatory effect?

2)     Why were viable alternatives not implemented?

3)     Can there be different standards that reflect group or individual differences and capacities?

4)     Can an organization’s legitimate objectives be met in a less discriminatory way?

5)     Is the standard designed to make sure the desired qualification is met without placing undue burden on the people it applies to?

6)     Have all the people who are obliged to assist in the search for accommodation fulfilled their role?  (12)

Responsibilities of Institutions to Remove Barriers

The policy also talks about the responsibility of organizations and institutions to ensure that barriers to participation are removed.

It states that “Organizations and Institutions have a responsibility to be aware of whether their practices, policies and programs have a negative impact or result in systemic discrimination against people or groups employed by the Code”14.   They must have an anti-discrimination program with the following components:

1)     A comprehensive anti-discrimination statement and policy

2)     Proactive, ongoing monitoring

3)     Implementation strategies

4)     Evaluation

To comply with this program, the Policy outlines a list of best practices that institutions should follow.

Best practices (pp 4-5)

Employers, representatives of employers and regulatory bodies should:

  • Examine their organizations as a whole to identify potential barriers for newcomers;address any barriers through organizational change initiatives, such as by forming new organizational structures, removing old practices or policies that give rise to human rights concerns, using more objective, transparent processes, and focusing on more inclusive styles of leadership and decision-making.
  • Review job requirements and descriptions, recruitment/hiring practices and accreditation criteria to make sure they do not present barriers for newcomer applicants.
  • Take a flexible and individualized approach to assessing an applicant's qualifications and skills.
  • Give an applicant the opportunity to prove his/her qualifications through paid internships, short contracts or positions with probationary periods.
  • Provide newcomers with on-the-job training, supports and resources that will enable them to close skill gaps and acquire any skills or knowledge they may be lacking).
  • Use competency-based methods to assess an applicant's skill and ability to do the job.
  • Consider all relevant work experience regardless of where it was obtained.
  • Frame job qualifications or criteria in terms of competencies and job-related knowledge and skills.
  • Support initiatives designed to empower newcomers inside and outside of their organizations (for example, formal mentoring arrangements, internships, networking opportunities, other types of bridging programs, language training, etc...
  • Monitor the diversity ratios of new recruits to make sure they reflect the diversity of competent applicants overall.
  • Implement special programs,corrective measures or outreach initiatives to address inequity or disadvantage affecting newcomers
  • Supply newcomers and social service agencies serving newcomers with information about workplace norms, and expectations and opportunities within the organization.
  • Retain outside expertise to help eliminate barriers to newcomer applicants.
  • Form partnerships with other similar institutions that can help identify additional best practices.
  • Provide all staff with mandatory education and training on human rights and cultural competence.

Employers, representatives of employers and regulatory bodies should not

  • Require applicants to have prior work experience in Canada to be eligible for a particular job.
  • Assume that an applicant will not succeed in a particular job because he or she lacks Canadian experience.
  • Discount an applicant's foreign work experience or assign it less weight than their Canadian work experience.
  • Rely on subjective notions of fit when considering an applicant's ability to succeed in the workplace.
  • Include a requirement for prior Canadian work experience in the job posting or ad or a requirement for qualifications that could only be obtained by working in Canada.
  • Require applicants to disclose their country of origin or the location of their work experience on the job application form.
  • Ask applicants questions that may directly or indirectly reveal where their work;experience was obtained.
  • Ask for local references only.

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