When Requiring “Canadian Experience” is a Violation of Human Rights
August 2013
On July 15, 2013, the Ontario Human Rights Tribunal launched a new policy which intends to remove a barrier that many new Canadians face – having “Canadian experience” when they apply for a job.
In Canada, human rights are enforced by provincial tribunals where the discrimination occurred in an area of provincial jurisdiction. Requiring “Canadian experience” involves employment law, which is a matter governed by the provinces. When a Canadian employer is found to have breached someone’s human rights, the human rights tribunal for that province can impose sanctions against that employer, including the payment of financial compensation.
The new policy from the Ontario Human Rights Tribunal addresses discrimination faced by new Canadians who may be qualified for a job, but their experience is from another country. This is called “adverse effect” discrimination, since it is not blatant discrimination (vs. something like only “whites” need apply) but still adversely affects immigrants of a minority race or ethnic origin.
Employers are prohibited from requiring Canadian experience in their job advertisements, or to ask on a job application form where the experience was gained.
During job interviews, employers may not ask candidates where their job experience was obtained, and should consider all of the candidates’ work experience when evaluating whether they meet the job requirements.
Employers can only ask specifically about “Canadian” experience if they can show that work experience in Canada is a legitimate requirement of the job, and that providing accommodation would cause undue hardship. The legal test for such requirements is a high one.
The new policy may require that licensing bodies for professional occupations change their licensing requirements. According to the province, 15 of the 38 regulated professions in Ontario currently require Canadian work experience. Six of them specifically ask for Ontario experience as part of the licensing criteria.
The Ontario Human Rights Tribunal has published a guide for employers on how to comply with the new policy. You can read it here:
