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Contributed by Demers Beaulne. This piece was produced as a part of the quarterly Canadian Overview, a newsletter produced by the Canadian member firms of Moore North America.
After a while, interviewing job applicants gets to be routine and you may fall into the trap of asking the wrong questions.
When that happens, you may not be getting the information you need. For example, how often have you asked
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Judging a Book by Its Cover |
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But suppose the supervisor conducts a vigorous interview and discovers the applicant is smart, articulate and has handled many difficult situations with ease. The supervisor decides to hire the man and tells him the dress code requires clean dress shoes. That’s interviewing and hiring with controlled subjectivity. |
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Develop Good Habits |
Don’t lose good prospects because of interviewing habits. Train staff members on interviewing techniques. As part of the sessions:
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these typical questions?
There is only one way to describe these questions: Useless.
The reason discussing these issues is a waste of time is that it’s far too easy for candidates to tell you what you want to hear.
The better way is to ask for specifics, emphasizing what applicants have done rather than what they intend to do. If you ask theoretical questions, you’ll get theoretical answers. So, let’s reshape the three earlier questions:
Phrasing the questions this way offers two benefits:
1. The applicant is likely to give a truthful answer because he or she believes you will check the answer with former supervisors.
2. You might be able to verify the truthfulness of the answer when you check references with the former supervisors.
Often, applicants give more information than they intended. Or, they stammer trying to reply because they don’t have enough practical experience – despite listing years of practical application on their resumes.
The goal in asking job interview questions is “controlled subjectivity.” You can’t freeze out all emotions and gut feelings, but you can control the questions and the direction of the interview. Your ultimate aim is to get as much information that can be objectively analyzed and verified.
Managing workplace harassment is a bit like navigating a minefield: You want to keep your company free of harassing behaviour; act quickly if there are incidents; and be fair to everyone involved. To complicate matters further, each of these issues presents potential liability.
There are several laws involved. The Canadian Human Rights Act, as well as provincial laws, puts the burden on
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Identifying Harassment |
 The Canadian Human Rights Commission provides the following guidelines for defining harassment:Unwelcome behaviour that demeans, humiliates, or embarrasses a person. This includes:
The Canadian Human Rights Act prohibits harassment related to race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability, pardoned conviction, or sexual orientation. Disrespectful behaviour, commonly known as “personal” harassment isn’t covered by human rights legislation, but some employers put it in their policies. Sexual harassment: This includes offensive or humiliating behaviour that is related to a person’s sex, creates an intimidating, unwelcome, hostile, or offensive work environment, or could reasonably be thought to put sexual conditions on a person’s job or employment opportunities. Examples include questions or discussions about a person’s sex life; touching in an inappropriate way; commenting on attractiveness or unattractiveness; persisting in asking for a date after being refused, and writing sexually suggestive letters or notes. Abuse of Authority. This occurs when a person uses authority unreasonably to interfere with an employee or a job. It includes humiliation, intimidation, threats and coercion. Abuse of authority unrelated to the above legal prohibitions aren’t covered by human rights legislation, but some employers state in their policies that it will not be tolerated. |
employers and managers to keep the workplace free of harassment. In addition, the Canada Labour Code requires employers to develop an anti-harassment policy and the Criminal Code protects people from physical and sexual assault.
When the Canadian Human Rights Commission evaluates a company’s liability in harassment complaints, policies and procedures play a major role. Employers are also responsible for monitoring the effectiveness of their policies, updating them if necessary, and ensuring that employees understand the policies and receive anti-harassment training.
It’s a good idea to get professional help drafting a policy. Among the components to include:
A clear and forceful statement. State that any form of harassment is intolerable and will be regarded as serious misconduct. This can help cut down on incidents and help employees feel comfortable filing complaints if necessary.
The consequences. Outline the potential penalties for harassment, including dismissal, and explain the steps that will be taken against individuals who make false accusations.
Definitions. Include examples of unacceptable conduct and list the categories covered under the Canadian Human Rights Act (for example, harassment based on sex, ethnic background or disability). Employees should know what harassment is and that it is against the law.
Rights and responsibilities. Employees need to know what is expected. Spell out the right to be free of harassment, the responsibility to treat others with respect, and, in the case of managers, the obligation to stop harassment.
Procedures. Outline the steps employees should follow if they are harassed. Sometimes employees are able to stop harassment just by speaking up or writing to the harasser. You can encourage them to do so. Keep in mind, however, that differences in power (age, sex, race, and so on) or status (such as a subordinate job) can make this impossible.
Investigations. Provide details of how charges will be investigated and resolved. Assure employees that everything will be confidential and that individuals making complaints or acting as witnesses on behalf of an employee won’t face penalties or retaliation.
A written policy can help employers decide whether to launch a formal investigation. For example, what is being alleged may not constitute harassment under the terms of the policy, because the offensive behaviour either was trivial or not based on a ground of discrimination as defined in human rights law. In such cases, informal discussions or counselling with the people involved may be sufficient.
Finally: Keep in mind that you are also responsible for harassment of non-employees by your employees. This includes potential employees, clients and customers.
(In a future article we’ll look at how to limit your company’s liability if an employee makes a complaint of workplace harassment.)
The Supreme Court of Canada clearly ruled: An employer who responds quickly and effectively to (a harassment) complaint by instituting a scheme to remedy and prevent recurrence will not be liable to the same extent, if at all, as an employer who fails to adopt such steps”(Robichaudv. The Queen).
And the Canadian Human Rights Act specifically states harassment shall not be considered to be an act.
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Making Amends |
The Canadian Human Rights Commission provides the following remedies for victims of harassment, depending on the severity and what he or she lost because of it:
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committed by an employer if it is established that the employer did not consent to the commission of the act and exercised all due diligence to prevent the act from being committed and, subsequently, to mitigate or avoid its consequences.”
In other words, if an employee complains about harassment, take action right away by getting statements, conducting an investigation and imposing appropriate remedies. By doing so, you will be able to demonstrate due diligence.
It’s critical to be impartial and sensitive to both the employee making the complaint and the accused harasser. That gives you a better chance of resolving the situation and avoiding court action. It’s a good idea to get professional help with your company’s investigative procedures, but here are some common steps that can help lead to a successful and effective resolution:
1.Name an investigator.
The person should be properly trained, objective and familiar with federal and provincial human rights law. You should provide sufficient resources for the investigation and relieve the investigator of any other duties that may impede the process. Consider whether the investigator should have a particular background given the nature of the charges.
2. Meet with the victim.
Be neutral and supportive. Make the employee comfortable. Explain the role of the investigator, the steps of the process and how long it is likely to take. Assure the person everything is confidential and that there will be no retaliation. Do not discuss disciplinary consequences for the accused. Identify any evidence and potential witnesses.
3. Write an incident report.
Following the initial meeting, the investigator should compile a report stating the charges and review the report with the victim to ensure accuracy. The report defines the focus of the investigation.
4. Plan the strategy.
Using the incident report, determine questions to be asked to support or refute the charges, who will be interviewed, and what evidence is required.
5. Meet with the accused.
Again, be fair and impartial or run the risk of tainting the investigation. The accused must be told who is making the charge and be given the opportunity to answer each allegation. Unless a collective bargaining agreement requires, the accused isn’t entitled to legal representation.
6. Interview witnesses.
This should be done as soon as possible after the alleged incident and all answers should be written and confirmed with the witness. Avoid telephone interviews. Consider factors such as whether witnesses directly saw or heard the incident, have a motive for lying, and whether witness accounts are corroborated.
7. Write a final report.
This provides the basis for resolution and shows your company pursued due diligence to resolve the situation. The report should be given only to the person who will make the ultimate decision in the case. It should state whether there is sufficient evidence of harassment, list possible resolutions, and recommend a course of action.
(For more information, click here to read our previous article, “Keeping the Workplace Free of Harassment.”)
With some rare exceptions, actions in the workplace based solely on an employee’s age are discriminatory and violate portions of these human rights laws in Canada: the Charter of Rights and Freedoms, the Human Rights Act and provincial and territorial statutes.
The Supreme Court of Canada has defined discrimination as: “A distinction whether intentional or not but based
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Testing for Undue Hardship There is an exception that allows some discriminatory actions if the cost of accommodating an employee would present an undue hardship for the company. When making a determination of undue hardship, businesses should consider three primary factors: health, safety and cost. A company has to provide hard evidence that accommodation would cost too much or impose health and safety concerns. The Supreme Court of Canada has listed other factors that may be considered, including:
These factors and their importance vary from case to case. For example, a large corporation or a federal agency would likely find it hard to prove undue hardship on the basis of cost alone. Such organizations usually have the budget, size and flexibility to accommodate special needs at a lower cost. Among the factors considered when determining financial costs are:
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Factors Not to Consider Include:
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on grounds relating to personal characteristics . . . which has the effect of imposing burdens, obligations or disadvantages on [an] individual or group not imposed upon others or which withholds or limits access to opportunities, benefits and advantages available to other members of society.” (Andrews v. Law Society of British Columbia)
To help avoid charges of age bias, a company must keep the workplace free from discrimination and support the needs of older employees. To help protect your business from potential legal liability, get professional legal help setting up a policy.
According to the Ontario Human Rights Commission, here are some of the actions that could generally be considered to involve age discrimination:
Age discrimination can also be found in the recruitment and hiring process, so it’s prudent to take the side of caution and avoid:
Certain types of differential acts are not generally considered discriminatory when based on age, such as:
(In a future article we will look at whether mandatory retirement is discriminatory.)
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A supervisor walks into a room and notices a male applicant in clean, professional-looking clothes. But he’s wearing dirty athletic shoes. The supervisor is tempted to go through the motions of the job interview, although he’s already rejected the prospect mentally because of his shoes. That’s reacting subjectively to a gut feeling.