LMO Q&A: Discrimination to obtain a Labour Market Opinion OPS/BE-003

When reviewing internal Service Canada correspondence, I came across this interesting exchange between a Service Canada officer and a Business Expertise Consultant (“BEC”).  The issue involves a Labour Market Opinion application where a daycare employer told a Service Canada officer that she did not hire a qualified Canadian candidate because he was a male.  The BEC said that a Labour Market Opinion could not be issued because such gender discrimination was contrary to the BC Human Rights Code 

Please note that what I have reproduced below should not be viewed as legal advice.  I obtained a copy of this internal Service Canada question and answer through an Access to Information Act request (the “ATI”).  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.  (I have decided not to reproduce the names of the Service Canada officers involved.) Please e-mail me if you want a copy of the original question and answer contained in the ATI.

BACKGROUND:

Daycare facility with 2 female employees and 10 children. When asked results of recruitement, ER stated she interviewed 6 candidates. Most wanted part time positions, one did not pass interview, one came in 30m late for interview, one was male and ER said she does not feel comfortable hiring male employees. She prefers having female workers and believes female children would feel more comfortable having female caretakers; especially in incidences where they need help with going to the bathroom.

QUESTION/ISSUE:

The employer has indicated she is uncomfortable to hire male employees for the position.

Is it appropriate to exclude men?

Can an employer discriminate based on gender?

If she had a qualified male to do the job, can we say there is no labour shortage?

OFFICER & TL RECOMMENDATIONS:

We want to be sensitive with this case (hence sending it to BE for policy clarification) because we are aware that ER’s should not be discriminationg; however, we also understand the employers concern. Your guidance would be appreciated.

BE CONSULTANT RESPONSE:

Additional information requested

1) What is the SF# for the file in question? SF ███████

2) How many qualified male applicants were refused the position? one

3) What was the explanation for excluding male applicants? She does not feel comfortable working with men at daycare. She believes children would also feel more comfortable with female caretaker. Ex: when they assist little girls to the bathroom.

answer:

In British Columbia, the BC Labour Standards Act establishes basic employment standards and conditions in order to promote fair treatment of employees. However, it is the BC Human Rights Code, which directly protects employees and job applicants from

“discrimination based on race, colour, ancestry, place of origin, religion marital status, family status, sex, sexual orientation, physical or mental disability, age (19 years and over), criminal conviction and political belief. II

The Code ensures that

“that employment decisions are based on job related criteria and not discriminatory considerations, And “have the right to be considered for jobs and promotions on the basis of merit.

In the case presented, the employer indicated that a male candidate qualified for the position, however, chose not to hire him because she was not comfortable hiring men, and believed that female children would be more comfortable being assisted by female early childhood educators (ECEs) in the washroom. As there is no basis for discrimination against males and the applicant qualified for the position, there is no basis to support the filling of a labour shortage.

recommendation:

Based on the fact that the employer was able to identify a qualified applicant, there does not appear to be a labour shortage.

supplementary information:

The following is additional information related to the inquiry and the ECE industry that may provide additional insights related to the employer’s cancers and the exclusion of male applicants.

The Director of the BC ECE Association stated that although this industry is dominated by female ECE’s, it is more a result of the fact this was a low paying (industry) and because of archaic gender stereotyping of the role as women’s work. She indicated that this industry faces struggles to include and attract more male ECE’s similar to that experienced by the nursing field.

She confirmed that more men are receiving the training and entering the force, and that men are not excluded from this field based on gender.

The employer’s concerns suggest that the applicant’s gender may pose a risk to female children.

While this may be a reasonable concern for occupations working with children, it could be addressed by requesting criminal checks, reference checks, etc. prior to employment. Also, the parallel to the nursing industry involves a growing recognition of such service positions as professions, which entail an expectation of professional behavior, regardless of the ‘socially uncomfortable’ duties involved (ex. personal care activities).

The BEC’s response serves as a useful reminder for employers (and representatives) to be familiar with their respective province’s human rights legislation.  In British Columbia, for example, the Human Rights Code, [RSBC 1996] Chapter 210, states the following:

Discrimination in employment advertisements

11 A person must not publish or cause to be published an advertisement in connection with employment or prospective employment that expresses a limitation, specification or preference as to race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age unless the limitation, specification or preference is based on a bona fide occupational requirement.

Discrimination in employment

13 (1) A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of employment

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

(2) An employment agency must not refuse to refer a person for employment for any reason mentioned in subsection (1).

(3) Subsection (1) does not apply

(a) as it relates to age, to a bona fide scheme based on seniority, or

(b) as it relates to marital status, physical or mental disability, sex or age, to the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan, whether or not the plan is the subject of a contract of insurance between an insurer and an employer.

(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

(The question which of course arises is does the entire Labour Market Opinion scheme contradict the British Columbia Human Rights Code requirement for non-discrimination on the basis of ‘place of origin.’   In brief, the answer is no, as in a string of successive cases has held that there is a distinction between ‘residency’ and ‘place of origin’, and that the Human Rights Code does not prohibit discrimination on the basis of residency.)


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