Ontario: Employers Can’t Require Applicants to Be Permanently Eligible to Work

 

By Yusra Siddiquee and David J. Master June 11, 2019
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​In a recent decision still reverberating with Canadian employers, the Human Rights Tribunal of Ontario (HRTO) struck down an employer's practice of requiring job applicants to be permanently eligible to work in Canada, finding that this requirement violates the Human Rights Code.

The applicant was an international student who earned an engineering degree in Canada. He was given a three-year, post-graduation open work permit, which allowed him to work for any employer and in any position. Before applying for a project engineer job at the company involved in this case, the applicant learned that recruiters required graduate engineers to have Canadian citizenship or permanent residence.

Because the Ontario Human Rights Code prohibits employers from asking candidates directly if they are Canadian citizens or permanent residents, the employer instead asked applicants if they were legally authorized to permanently work in Canada.

The applicant answered that he was, even though he wasn't, and eventually became the top-ranked candidate for the job. But to accept the position, he had to prove he was eligible to work permanently in Canada, which he couldn't do. The company rescinded its job offer.

The applicant pursued a case at the HRTO for discrimination based on his citizenship. In its defense, the company argued that:

  • It had the right to withdraw the offer because the applicant lied.
  • It could ask about an applicant's immigration status because Ontario law doesn't consider the question discriminatory.
  • Requiring applicants to have permanent residence status was a bona fide job requirement because the organization expected recruits to remain with the company.

[SHRM members-only toolkit: Introduction to the Global Human Resources Discipline]

The HRTO characterized the permanence requirement as "direct discrimination." It rejected the company's argument that permanent residence status was a bona fide job requirement, noting that the company acknowledged it could waive this requirement for applicants whose skills were in high demand. Employers expect a challenge to the HRTO's decision.

Haseeb v. Imperial Oil Limited, 2018 HRTO 957, aff'd, 2019 HRTO 271.

Professional Pointer: This decision is problematic on several levels. It impedes employers from implementing predictable recruiting and training strategies. In many professional occupations, including entry-level positions, the need for medium- and long-term training plans is essential and legitimate for the successful execution of job responsibilities. The decision leaves Canadian employers in the difficult position of not knowing if a job candidate can work beyond a work permit's expiration. Even if an applicant has a work permit that expires soon, an employer couldn't exclude the candidate from consideration for most positions.

The HRTO also misapplied the company's evidence, which confirmed that in high-demand jobs, where the company would have a reasonable chance securing a work permit for an applicant, it would waive the requirement for permanent resident status. The company did not apply this discretion to junior- and entry-level positions because there is typically little chance of success in securing a work permit for such jobs.

The fact that the company was not averse to hiring applicants on work permits demonstrated that it was not discriminating against applicants based on citizenship, but rather had considered, and was applying, Canadian immigration law. The most basic work permit category requires that employers be able to show through active recruitment why a Canadian citizen or permanent resident could not be hired prior to offering a job to a foreign national. Thus, this decision is in sharp contrast to Canadian immigration provisions.

Canadian employers should review their job applications and policies to ensure compliance with applicable human rights laws. Employers can and should still require applicants to be legally authorized to work in Canada for the duration of their employment.

Yusra Siddiquee and David J. Master are lawyers at Littler in Toronto.

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