With Canada’s growing influx of international students in recent years, employers must be careful not to implement hiring practices that may be considered to be discriminatory on the grounds of citizenship. A recent decision by the Human Rights Tribunal of Ontario (HRTO) provides a cautionary tale.
Background
In Haseeb v Imperial Oil Limited (2018 HRTO 957), the Applicant, Mr. Haseeb was an international student in mechanical engineering at McGill University. He anticipated that upon graduation he would become eligible for a post-graduate work permit, which would allow him to work in Canada full-time for a fixed term of three years. He further expected to attain permanent residency status within those three years. As such, he applied for an entry-level Project Engineer position at Imperial Oil.
Imperial Oil had a hiring policy that required job applicants to confirm that they were able to work in Canada on a “permanent basis”. This requirement was included in the company’s job postings, online application forms, and in various interview questions. The effect of such a requirement was that only Canadian citizens or permanent residents would be considered eligible candidates.
Mr. Haseeb had learned about this requirement from other students and, during his recruitment process with Imperial Oil, provided positive responses to Imperial Oil recruiters when asked whether he was able to work on a permanent basis in Canada. These responses were, in fact, untrue.
As the top candidate, Mr. Haseeb ultimately received an offer of employment from Imperial Oil, conditional on his ability to provide, by a certain date, proof of his eligibility “to work in Canada on a permanent basis”. Mr. Haseeb was unable to provide the required proof by the deadline and Imperial Oil rescinded the job offer about a month later.
HRTO Application & Arguments
Mr. Haseeb brought an application against Imperial Oil under section 34 of the Human Rights Code for discrimination on the basis of place of origin, citizenship, and ethnic origin. At the hearing, counsel for Mr. Haseeb narrowed the grounds of discrimination to citizenship only. Mr. Haseeb also argued that Imperial Oil breached sections 13(1), 23(1), and 23(2) of the Human Rights Code. Section 13 prohibits the publication or display of an intent to discriminate. Section 23 prohibits the inclusion of discriminatory qualifications in an invitation to apply for or advertisement for employment.
Imperial Oil took the position that it rescinded the offer to Mr. Haseeb due to his misrepresentation of his permanent residency status throughout the hiring process. The company also defended this hiring practice as a matter of succession planning and, alternatively, as a bona fide occupational requirement ("BFOR").
Decision
The HRTO held that Imperial Oil’s “permanent status” requirement—whereby it differentiated between candidates on the basis of citizenship—was discriminatory and a direct breach of the Code. The policy was not saved by section 16 of the Code, as Imperial Oil was not adhering to a requirement authorized or imposed by law.
Further, the Tribunal found that the BFOR defence was not available to Imperial Oil, as the hiring policy was a direct breach of the Code. In the alternative, the permanent status requirement was not an “occupational requirement” as it was not linked to the performance of essential tasks related to the position in question. In the further alternative, assuming the permanent status requirement was an “occupational requirement”, it was not bona fide and necessary as it could be waived for non-entry level positions. In any event, the Tribunal was not persuaded that accommodating Mr. Haseeb would have caused the company undue hardship.
Interestingly, the Tribunal also found that Mr. Haseeb’s dishonesty throughout the hiring process was irrelevant to a finding of a breach of the Code. According to the Tribunal, Mr. Haseeb’s ruse was “inextricably linked” to the company’s hiring policy, as it was made in response to inquiries in breach of the Code about his residency status.
