By Wendy Ferguson – BHRLR, CPHR – Ferguson HR Consulting
I was recently asked by a business leader if most Alberta energy sector companies are asking online job applicants to self-identify as one of the four “designated groups”. These would include: women, those with a disability, aboriginal people and visible minorities.
I just finished telling you last week that you may not ask questions pertaining to the above grounds in an interview, and my advice has not changed. Much of this information came from the Alberta Human Rights Commission (AHRC), and specifically “A Recommended Guide for Pre-Employment Inquiries”, published by the AHRC. Yet, if any of you have recently submitted an application for a job, or oversee diversity programs within your organization, you will have noticed that more and more companies are requiring that you provide this sensitive information. Sometimes it is mandatory, other times it is voluntary and you may choose to not participate. Further to that, sometimes the system will say it is voluntary, but then you find that you cannot complete the application if you don’t complete that section.
Our Canadian Human Rights Act (CHRA) and Alberta Human Rights Act (AHRA) prohibits discrimination on the basis of gender, race, ethnicity, age and a number of other grounds. Our Employment Equity Act (EEA) laws are meant to protect the rights of the four designated groups.
The AHRA indicates that “no employer shall discriminate against any person with regard to employment or any term or condition of employment, because of race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person”.
Indeed, the AHRA specifies that when companies publish employment ads that “no person shall use or circulate any form of application for employment or publish any advertisement in connection with employment or prospective employment or make any written or oral inquiry of an applicant:
(a) that expresses either directly or indirectly any limitation, specification or preference indicating discrimination on the basis of the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person, or
(b) that requires an applicant to furnish any information concerning race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation”.
(I would like to note here that the above does not apply if there is a bona fide occupational requirement – for example, in order to perform their job safely, an airline pilot would require acceptable vision).
I personally contacted the Alberta Human Rights Commission for further clarification and their agent referred me to Section 11 of the Alberta Human Rights Act and told me that as an exception, employers may ask potential employees to self-identify (and it does not have to be voluntary) in order to complete the job application process, but only if they are using this information to support their Employment Equity and Diversity Program, The same rules apply for all Canadian companies, whether privately owned or a crown corporation. This is what they refer to in the Act as a ‘reasonable and justifiable contravention’.
I asked the agent to explain to me what a company must have in place in order to claim they in fact have an Employment Equity/Diversity Program. She simply said that in an event of a Human Rights complaint, the company would have to be able to show they have an equity and diversity program and that their collection of this data supports their purposes to maintain a diverse workforce.
So there you have it…the legislative contradiction explained! I would like to be forthcoming here and tell you that I quickly expressed my concern regarding the apparent inconsistency between our human rights legislation protecting us from having to reveal this information and then our legislation allowing for the collection of this same information by a corporate human resources information system. Unimpressed, she asked me if I had a complaint to file. “No I don’t have a complaint today”, I said. I’m also a bit perplexed as to why companies are permitted to collect this information without having to register their Employment Equity Program FIRST with the AHRC, in order that they can ‘contravene’ legislation. I feel that would be more acceptable, but that’s just my humble opinion.
I can only hope that the information collected is actually being used to enhance employment diversity in companies and that it isn’t leading to further discrimination or reverse discrimination. Personally, I’ve always hired the candidate that is best suited for the job based on their qualifications, experience, attitude, aptitude and education, but I completely respect the need to diversify the workforce. If your organization is thinking about developing or already has implemented an Employment Equity Program, then I strongly recommend that your program, processes and accumulated data are meticulously documented.
About Wendy Ferguson
Wendy Ferguson is an Alberta based Human Resources Generalist and Consultant with over 15 years of combined experience in the areas of HR, Business Administrative Management and Marketing.
She has worked within a broad range of industries, including: oil & gas, architecture, law, information technology, engineering, accounting and business consulting firms. She works with companies on both a full time and part time consulting basis to help them address their HR management, recruitment and policy needs.
She is also a Chartered Professional in Human Resources (CPHR). CPHRs are uniquely qualified to help you achieve your business goals. With proven expertise across nine key business metrics, a CPHR has the knowledge and the experience to address the factors that underpin the degree of your immediate and long term success.
For your HR requirements contact Wendy at [email protected]
Senior Management HR Advisory
Alberta Employment Standards