Employers often make hiring decisions based on a multitude of objective and subjective factors. Given that personal biases often play a conscious or unconscious role in these decisions, employers face the risk of finding themselves the subject of a complaint to the British Columbia Human Rights Tribunal (the "BCHRT") where an applicant speculates that there has been some form discrimination in the hiring process.
A recent complaint to the BCHRT highlights to employers the importance of mitigating the potential impact of biases through adopting a well thought out and documented hiring process.
Kalyn v. Vancouver Island Health Authority, 2022 BCHRT 41
Facts
The complainant worked for the Vancouver Island Health Authority for over 30 years and was one of very few women in a male dominated department. In 2018, the complainant applied for a management position, which was ultimately awarded to a younger male colleague. The complainant believed the employer's decision to award the position to her colleague was based in part on her age and sex. As such, she commenced a human rights complaint alleging that the employer's hiring decision violated ss. 13 of the Human Rights Code (the "Code"). Section 13 of the Code protects people in British Columbia from discrimination in hiring based on protected characteristics, including age and sex.
The Tribunal's Decision
Despite acknowledging that the employer's department was one marked by sex discrimination, the Tribunal dismissed the complaint on the basis that the complainant did not prove that her age and/or sex were a conscious or unconscious factor in the decision.
In reliance on coming to this decision, the Tribunal noted that the employer's hiring process included a number of strategies to mitigate the potential impact of biases. These employer's strategies included:
- standardized and structured interview questions;
- participation of four people on a gender balanced interview panel;
- keeping independent records of the interview and answers; and
- including an employee from the Human Resources department on the interview panel.
The Tribunal also accepted the employer's evidence that its decision was based on documented non‐discriminatory distinctions between the performance of each applicant rather than on a vague notion such as "fit".
While the Tribunal stated that it could not rule out that the complainant's sex may have been a factor in systemic forces which offer support to the advancement of some people in the workplace and not others, it ultimately concluded that there was insufficient evidence to allow it to conclude that such forces factored into the outcome for this particular position. The key takeaway from this decision is that in order to minimize risk, employers should implement strategies and tactics in their hiring processes to mitigate or eliminate potential biases. If you have any questions regarding implementing hiring policies, or other employment-related questions, please contact one of the members of our Labour & Employment team.
Minimizing Biases in the Hiring Process
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