Facing up to recruitment discrimination

Facebook has endured a lot of controversy recently for various aspects of its social media platform. Privacy issues and the proliferation of false news have been at the centre of a lot of it, as has the fact that advertisers can target specific groups of users on the social media site — something which has raised concerns of discrimination where the targeting involves the exclusion of characteristics protected under Canadian human rights legislation.

Facebook recently announced it is rolling out changes to how advertisers target job ads to people on the site, including restricting their ability to target people based on protected human rights characteristics such as age, gender or postal code and excluding others because of those characteristics.

The Canadian Human Rights Commission and the Ontario Human Rights commission applauded the changes, which stem from a settlement in the U.S. between Facebook and civil rights organizations over discrimination allegations. Both commissions also brought their concerns to the social media company that discriminatory advertising on Facebook violated Canadian human rights laws.

The issue of targeted job ads on social media should serve as a reminder to employers that they may be walking a fine line if they advertise employment opportunities or conduct job interviews that go too far in targeting specific characteristics in people — targeting that could be discriminatory.

Examples of discrimination in recruitment

For example, early last year, the Ontario Human Rights Tribunal found a company discriminated against a 45-year-old job applicant because of the applicant’s age. In notes from the job interview, the applicant was referred to as “older” while other applicants were called “young” and noted to have characteristics such as “ambition, mental quickness, being opinionated, and having good computer and software skills.” The tribunal saw this as evidence of the company using stereotypes of older people as a factor in the hiring decision: See Moore v. Ferro (Estate), 2019 HRTO 526 (Ont. Human Rights Trib.).

Back in 2015, a nurse applied for a job at a Nova Scotia hospital and didn’t disclose that she had epilepsy that restricted her ability to work a rotating shift schedule. The hospital gave her a conditional offer of employment, but when the nurse disclosed her epilepsy on an employee health questionnaire, things changed. The hospital was given restrictions that prevented the nurse from working regular night shifts and it rescinded the job offer. The Nova Scotia Board of Inquiry found that the hospital couldn’t prove that giving the nurse reduced shift rotations and occasional night shifts was undue hardship, awarding the nurse $15,000 for the hospital’s failure to accommodate her: See Yuille and Nova Scotia Health Authority, Re, 2017 CarswellNS 615 (N.S. Bd. of Inquiry).

Going back a couple of years earlier than that, an Ontario company asked an applicant keen on a legal writer position for information on his prior employment and the dates he had been called to the bar, as he was a lawyer. The applicant, who was 60 years old, provided the information and the company put his application “on hold” while it interviewed two younger candidates. When the company offered the position to one of the other candidates without interviewing the 60-year-old, the older applicant made an inquiry and was told, “It is looking like they are moving toward candidates that are more junior in their experience and salary expectation.” The Ontario Human Rights Tribunal found the company’s communications with the applicant and its desire for a junior candidate deprived the applicant of an opportunity to have an interview — an adverse effect — based on a stereotypical assumption of the older applicant. The applicant was awarded $5,000 for injury to dignity, feelings, and self-respect: see Reiss v. CCH Canadian Limited, 2013 HRTO 764 (Ont. Human Rights Trib.).

Companies have a right to look for people with particular skills and qualities that fit the jobs for which they’re recruiting. However, if they try to be too specific and exclude certain applicants because of characteristics protected under human rights legislation that aren’t necessary requirements for the job, then they’re likely going to get into hot water and may end up on the hook for damages for discrimination — and maybe some bad press.

Facebook is working to rid itself of discriminatory job ads — and employers should do the same.