17 May Are employers in Canada required to advertise job vacancies?
As an employer, there is no obligation to advertise vacant positions at the workplace. However, the process of hiring new employees cannot be discriminatory.
Section 23(1) of the Code explains that advertisements which classify or provide qualifications related to race, gender, age, ethnicity, ancestry, place of origin, colour, citizenship, marital status, family status, disability, creed, sex, sexual orientation, or record of offences, whether directly or indirectly, can be deemed discriminatory.
Discrimination is determined by asking whether a reasonable person would believe that the treatment in question could be deemed discriminatory. But as section 23(1) of the Code indicates, discrimination can be either direct or indirect. For an advertisement to be indirectly discriminatory, it would establish parameters that are required for the role, which isolate one particular group that all share a common characteristic, like race or ethnicity. An advertisement that creates these constraints is practicing discriminatory behaviour, even though the employer did not explicitly state a certain ethnicity of worker is not permitted to apply (which would be direct discrimination).
Further, if the employer chooses not to advertise, legally, the reasoning cannot be because they want to exclude a certain demographic of applicants. This is also participating in discriminatory behaviour, even though there is no advertisement to analyze. What matters, in this case, is the intention behind the hiring process, and making sure it is open to everyone equally.
What employers can do to ensure fair treatment
To ensure the application process is fair, employers should be clear about what the role entails and define the expectations and skills that are necessary for the applicant. Further, the employer can make sure the wording to describe this role is as neutral as possible.
When the employer decides to release the advertisement to the public, they should make sure it can reach a wide variety of people. The employer should avoid only advertising the job vacancies to friends, people they come into contact with during their daily activities, or via particular online platforms such as LinkedIn. The advertisement in these cases may only reach a very small portion of the public because it is heavily reliant on the demographic the employer is involved with. Instead, the employer should post the formal advertisement via different channels that ensure all the qualified workers can apply for the job.
If you require legal counsel related to a matter concerning discriminatory treatment or have any further questions, please contact KCY at LAW by filling in an online consultation request or contact us by phone at 905-639-0999 to book your consultation today.