Hiring and family ties: favoritism or discrimination?

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Dn the first scenario, candidates are victims of discrimination because they are refused a job simply because they are related or married to a staff member. But in the second scenario, many young people who are not lucky enough to have a parent in the company find themselves excluded for this reason.

In either case, these policies may sometimes contravene the Charter of Human Rights and Freedoms , which prohibits discrimination based on marital status in the workplace. Indeed, the Charter provides that “Everyone has the right to full and equal recognition and exercise of human rights and freedoms, without distinction, exclusion or preference based on […] civil status […] ].”

Although the term “civil status” is not defined in the Charter , the Supreme Court of Canada clearly established, in Commission des droits de la personne du Québec c. City of Brossard ([1988] 2 SCR 279), that civil status not only includes marital status, such as being single, married, separated or divorced, but also includes kinship and affinity, such as being father or mother, grandfather or grandmother, son or daughter, brother or sister, uncle or aunt, brother-in-law or sister-in-law, cousin or cousin, nephew or niece, etc. Moreover, there is now no longer any doubt that a de facto union is included in the concept of “civil status” provided for in section 10 of theCharter (Quebec Human Rights Commission v. Immeuble Ni/Dia Inc. , [1992] RJQ 2977).

In matters of distinction, exclusion or preference based on civil status, the company can present a defense of justified professional requirement (EPJ), that is to say a defense based on Article 20 of the Charter , which holds as non-discriminatory certain distinctions, exclusions or preferences that would otherwise constitute discrimination under section 10, insofar as they are based on aptitudes or qualities required for the job.

In the Ville de Brossard matter, the Supreme Court concluded, in the context of a refusal to hire, that the exception provided for in Article 20, the EPJ must be interpreted restrictively since it suppresses rights. In this case, the City of Brossard, in a good faith attempt to combat nepotism within the public service, adopted a hiring policy that prevented immediate family members of full-time employees and municipal councilors from be hired by the City. The latter, applying the policy in question, had refused to hire a candidate for the position of lifeguard at the municipal swimming pool on the grounds that her mother worked full-time as a typist for the municipal police department. After discussing at length the relevant case law,

“For its hiring policy to be deemed non-discriminatory, the respondent must demonstrate […] that this requirement relates objectively to the exercise of employment with the city, in the sense that it is reasonably necessary to ensure the efficient and economical performance of the work.”

The Court clarified that the determination of what is “reasonably necessary” should be considered in light of the following two questions:

“(1) Is the ability or quality rationally connected to the job in question? This is one way of determining whether the employer’s purpose in establishing the requirement is objectively appropriate for the position in question. […]

(2) Is the rule properly designed so that the fitness or quality requirement can be met without placing undue demands on those subject to the rule? This allows us to examine the reasonableness of the means chosen by the employer to verify whether this requirement is met in the case of the employment in question. […]»

More recently, in the Meiorin case , the Supreme Court of Canada reformulated the applicable test for establishing a BFOR, insisting in particular on the need

to fulfill the duty to accommodate (British Columbia (Public Service, Employee Relations Commission) v. BCGSEU , [1999] 3 SCR 3).

Thus, in accordance with the above principles established by our Supreme Court, a policy aimed at eliminating conflicts of interest by restricting the employment of relatives will be considered non-discriminatory if, and only if, there is a real real conflict of interest. or apprehended and whether it is impossible to accommodate the individuals without undue hardship on the company.

Therefore, a company should not refuse to hire a person who is related to one of its employees if such hiring is only likely to lead to a hypothetical possibility of a conflict of interest and s it is possible to accommodate it otherwise.

Case law illustrations

To illustrate our point, here are various decisions of our decision makers depending on whether the policies or decisions were found to be in conformity or contrary to the Charter.

Refusal to hire in accordance with the Charter

A food wholesaler had refused to hire a candidate for the position of executive secretary to the executive vice president on the grounds that her husband was a unionized employee working as a lift operator in one of the employer’s warehouses. He had, however, offered her another job as secretary with certain less advantageous conditions. The employer based its decision on the fact that, in the performance of her duties, the candidate would have become aware of information of a strategic and confidential nature which would have an impact on her husband’s working conditions.

 

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