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