Category Human Resources

Get to the Meat in Job Interviews

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

 Judging a Book by Its Cover

lores_interview_sign_nhA 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.

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.

 Develop Good Habits

   Don’t lose good prospects because of interviewing habits. Train staff members on interviewing techniques. As part of the sessions:

  • Have employees role-play as applicants, with interviewers asking them test questions and learning from reactions.
  • Identify questions that provide real, specific, job-related and experience-related information.
  • Prepare a list of the best questions for all supervisors to use in interviews.

these typical questions?

  • “What do you want to be doing five years from now?”
  • “How would you handle a situation where an another employee needed to be disciplined?”
  • “What do you consider to be your strengths and weaknesses?”

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:

  • “What do you want to be doing five years from now? And give me examples of achievements from your past work history that will help you achieve your goals.”
  • “Give me a specific time when you had to discipline or reprimand an employee and whether or not it worked. What effect did the action have on the employee? And what effect did it have on you as the supervisor?”
  • “What would your three most recent supervisors tell us about your work-related strengths and weaknesses?”

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.

Get the Balance Right

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

Identifying Harassment

lores_legal_law_judge_gavel_black_white_bzThe Canadian Human Rights Commission provides the following guidelines for defining harassment:
Unwelcome behaviour that demeans, humiliates, or embarrasses a person. This includes:

  • Actions, such as touching and pushing.
  • Comments, including jokes and name-calling.
  • Displays, such as posters and cartoons.

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.)

Be Quick and Effective

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.

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:

  • An oral or written apology from the harasser and the company.
  • Lost wages or a job or promotion that was denied.
  • Compensation for lost employment benefits, such as sick leave and compensation for hurt feelings.
  • Commitment that the employee will not be transferred, or will have a transfer reversed, unless the employee chooses to move.
  • No record of the complaint, investigation or decision will go in the employee’s personnel file and any unfavourable work review or comments that were placed in the file because of the harassment will be removed.

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.”)

Guarding Against Age Bias

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:

  • The type of work performed.
  • Size of the workforce.
  • Interchangeability of job duties.
  • A financial ability to accommodate.
  • The impact on a collective agreement.
  • The influence on employee morale.

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:

  • The employer’s size and financial situation.
  • An ability to amortize costs or mitigate the hardship in some other way.
  • The number of people the accommodation would benefit.
  • The possibility of phasing-in major accommodations.
  • The availability of special budgets, reserve funds or external sources of funding, such as government funding or tax incentives.

Factors Not to Consider Include:

  • Customer or public preference based on prejudice or stereotyping.
  • Discriminatory objections, such as other employees’ objections to accommodations based on prejudice or attitudes inconsistent with human rights values.
  • Threatened grievances by other employees.

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:

  • Limiting or withholding transfers, promotions and training based on an employee’s age.
  • Using subjective criteria that could indicate ageism in determining whether to retain or terminate an employee.
  • Refusing to assign an older employee to certain jobs or requiring an undesired transfer.
  • Linking performance evaluations to age by either subjecting older employees to more scrutiny or evaluating based on a perception that a person will soon retire.
  • Failing to recall someone from a layoff because of age.
  • Targeting older workers during a downsizing, reorganization or amalgamation.
  • Letting an employee go because the person is eligible for pensions.
  • Retaliating or threatening retaliation against any individual who is the alleged victim of age discrimination, files a complaint or testifies in a discrimination complaint.
  • Failing to accommodate older workers unless that would create undue hardship for your company. (See right-hand box for how to gauge undue hardship).

Age discrimination can also be found in the recruitment and hiring process, so it’s prudent to take the side of caution and avoid:

  • Direct or indirect statements relating to age in job advertisements.
  • Age-related questions in job applications other than to determine that a candidate is old enough to hold a full-time position.
  • Interview questions relating to age unless: the job is aimed specifically at persons 65 years of age or older; the hiring organization is a special interest group serving a particular age group; age is a bona fide occupational requirement of the job; or the question is necessary to determine eligibility for a special program to promote age equality.
  • Statements about your company’s need to “rejuvenate” its work force.
  • Comments while evaluating candidates that refer to the applicant’s appearance, adaptability, or ability to be trained based on age, or concerns that the applicant will be too costly to hire because of age.
  • Evidence that there is a pattern of preference for hiring younger workers. For example, if a significantly younger candidate is hired whose qualifications are no better than an older candidate for the same job, or a candidate is turned away due to a perceived “lack of career potential” or experience that was too “diversified” or “specialized.”

Certain types of differential acts are not generally considered discriminatory when based on age, such as:

  • Legal restrictions on child employment.
  • Affirmative action programs for older workers.
  • Retirement plans based on minimum age plus years of service.
  • Policies aimed at easing the transition into retirement.

(In a future article we will look at whether mandatory retirement is discriminatory.)

Take Steps to Ensure Unbiased Retirements

Promote Flexibility and Choice

thmb_tax_trusts_nest_egg_planning_silver_bzAs the baby boom generation continues aging, retirement is becoming an increasingly complex economic, employment and human rights issue that can trigger age-discrimination concerns.

Defending Bona Fide Requirements

Discrimination or exclusion from a job is allowed in certain situations if the company shows that the position requires specific qualifications, which are known as bona fide occupational requirements (BFOR).

In a landmark ruling, the Supreme Court of Canada set a three-pronged test for a BFOR, determining that it must be:

1. Adopted for a purpose or goal that is rationally connected to the functions of the position.

2. Adopted in good faith, in the belief that it is necessary to fulfill the purpose or goal.

3. Is reasonably necessary to accomplish the purpose or goal in the sense that the employer cannot accommodate without undue hardship persons who don’t have the qualification. (Meiorin v. The Government of British Columbia).

The test requires that employers take into account the capabilities of different members of society before it adopts a BFOR and standards and tests to evaluate a person against the requirement. The standards must only reflect the true requirements of the job.

The physical demands of certain jobs may allow employers to restrict jobs to those over a certain age and those who don’t have certain chronic physical conditions and disabilities.

This is allowed because employers have a duty to provide a reasonable level of safety in the workplace, which includes ensuring that employees performing their jobs aren’t a danger to themselves or others.

Mandatory retirement is no longer a universal practice in Canada. At the federal level, it is still permitted under the Human Rights Act when an individual reaches the normal age of retirement for employees working in similar positions. And Canadian case law suggests that in some circumstances, laws or government policies permitting mandatory retirement are justified under Section 1 of the Charter of Rights and Freedoms.

However, several provinces and territories have now banned mandatory retirement at the age of 65 unless:

  • There are bona fide and reasonable requirements for essential job duties.
  • Accommodation would cause undue hardship to the business. (See right-hand box for the legal test of bona fide occupational requirements.)

Confronted with a decline in the number of employees retiring or a need to reduce the work force, some companies also offer voluntary early retirement packages. These can certainly benefit all staff members to the degree that the plans offer older employees a chance to pursue other interests or ambitions, ensure that fewer people will involuntarily lose their jobs and help retain promising young employees by offering more chances for them to advance in the company.

But early retirement plans by their nature target older employees and should be used carefully to avoid discrimination concerns.

First and foremost, early retirement plans should be truly voluntary and not contain any coercive element, according to the Ontario Human Rights Commission. For example, if faced with the possibility of losing their jobs altogether, many employees may feel compelled to accept early retirement. Packages can also be presented in a way that suggest older employees are being targeted or that refusal to accept the offers will result in some retaliation.

Some employees may even accept an offer as an alternative to facing negative workplace attitudes toward older staff members, which could suggest that they feel compelled to accept retirement.

So if your company is considering offering early retirement to its employees, consult with a lawyer to ensure that the offer is properly designed and doesn’t raise red flags of age-discrimination.

Here are some other prudent considerations form the Ontario Human Rights Commission when providing incentives for an early retirement:

  • Offer a plan that does not pressure employees to accept it or penalize those who reject it. Regardless of how generous a package is, companies could be subject to claims of age discrimination if their plans aren’t truly voluntary.
  • Define the eligibility criteria and share it with all employees. Some companies even offer similar voluntary exit packages to individuals who are not near retirement.
  • Do not link acceptance of an early retirement package to job loss. If downsizing, indicate the criteria your company is using to select the jobs that will be eliminated. Assure staff members that eligibility for a voluntary exit program in no way influences decisions about job loss. Choose positions to terminate, rather than people, and don’t re-establish a position after it’s been eliminated.
  • Structure pensions and benefits so that the actuarial value of reduced pensions for early retirees is at least equal to the current value of the deferred pensions for those electing to stay until they are eligible for full benefits.

Ease the transition: When your employees retire or accept an early retirement package, consider accommodating them with programs that help them ease out of the daily work routine. Programs could include flexible hours and working conditions, part-time positions, job sharing arrangements, and hiring retired workers for short-term contracts and consultant positions.

(For more information on how to avoid claims of age discrimination, click here to read our previous article, “Guarding Against Age Bias.”)