Help Wanted: Canadian Experience Required.
Statistics Canada reports that recent immigrants to Canada face disproportionately high rates of unemployment and underemployment and has identified a lack of Canadian experience as one of the most common barriers for newcomers looking for meaningful employment in Canada. Yet, job ads often require job applicants to have “Canadian experience” in order to apply.
This summer, the Ontario Human Rights Commission (“OHRC”) launched its Policy on Removing the “Canadian experience” Barrier (the “Policy”). The OHRC Policy recognizes that the requirement for recent immigrants to Canada to have “Canadian experience” represents a significant barrier for these individuals to find work that corresponds to their education, skills, and experience. As the Policy notes, newcomers to Canada “cannot get a job without Canadian experience and they cannot get Canadian experience without a job.” The OHRC has taken the position that a strict requirement for Canadian experience is prima facie discrimination, and can only be used where that experience can be shown to be a bona fide occupational requirement.
The Ontario Humans Rights Code (the “Code”) states that “[e]very person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability”. The OHRC Policy states that requiring Canadian work experience is a form of indirect discrimination as it adversely affects people who were not born and raised in Canada.
To show that Canadian experience is a bona fide occupational requirement, the employer must meet the following three-part test:
- the requirement was adopted for a purpose or goal that is rationally connected to the function being performed;
- the standard was adopted in good faith in the belief that it is needed to fulfill the purpose or goal; and
- the standard is reasonably necessary to accomplish its purpose or goal because it is impossible to accommodate the claimant without undue hardship to the employer.
The OHRC identified a number of best practices, including that employers should:
- Frame job qualifications or criteria in terms of competencies and job-related knowledge and skills, rather than using “Canadian experience” which is an arbitrary term with no clear definition.
- Use competency-based methods to assess an applicant’s skill and ability to do the job.
- Provide newcomers with on-the-job training, supports and resources that will enable them to close “skills gaps” (i.e. acquire any skills or knowledge they may be lacking).
- Give an applicant the opportunity to prove his/her qualifications through paid internships, short contracts or positions with probationary periods.
The Policy helps to highlight the disconnect between Canada’s general immigration policy of bringing high-skilled immigrants to work in Canada and the barriers in place with respect to high skilled-work once these individuals arrive in Canada.
While not law, the OHRC’s policies are given deference by courts and tribunals, and employers would be well advised to review their internal hiring processes in light of this Policy.