Can You Refuse to Hire Based on Someone’s Criminal Record
Ontario’s Human Rights Code (the “Code”) specifically lays out the areas that are ‘prohibited grounds’ – protected when it comes to discrimination based on employment. These include categories that you might imagine and that we have written about recently – age, disability, sexual orientation, and some more unique ones such as family status.
However, Ontario also outlaws discrimination in employment based on a person’s record of offences. The Code outlines that this applies in two scenarios – where an individual has been pardoned of a federal offence such as under the Criminal Code, or if the offence was provincial such as under the Highway Traffic Act.
So what does this mean for employers? Do you need to hire someone in your business who has a past criminal record? Are there instances where you can still refuse to hire them? How do you keep your workplace safe while giving somebody deserving a second chance?
What Record Suspensions Look Like
First, it is important to note that record of offences here does not mean offences for which someone has been charged or convicted, and these human rights protections do not apply in those cases. Instead, the protection applies to suspended records, where an individual has completed their sentence, and been on the right side of the law for long enough that their conviction has been administratively set aside.
According to recent statistics from the Parole Board of Canada, over 2000 parole decisions are made each year, and 94% of those cases were granted pardons, now known as record suspensions. These suspensions may not disappear entirely from a person’s record, but they will clearly be noted as suspended, and thus should not be held against the individual for the purposes of employment.
While it may seem like an administrative matter, this suspension can be life changing for those involved. Public Safety Canada states that nearly a half-million suspensions have been issued since 1970, and 95% of those have remained intact. In other words, these individuals do not reoffend and should be cleared to effectively rejoin society.
As Public Safety best explains, “a record suspension removes the social stigma associated with having a criminal record, and allows individuals to access education and employment opportunities.” The goal of a suspended record is to help unburden an individual of their past misdeeds, especially when they are at low risk to re-offend, so that they are able to work and contribute to society.
So what does this mean for employers?
How should employers handle record suspensions?
A prohibition on discrimination does not mean that an individual’s criminal record is erased completely, nor that the employer cannot use it as a factor when making some decisions. Rather, the Ontario Human Rights Commission instructs employers to take a reasonable approach when analyzing past convictions and determining what role, if any, that conviction should play in a hiring decision.
If an employer still refuses to hire a candidate with a suspended record, they must show that it was part of a bona fide occupational qualification, or that having a completely clean record in an area was a necessity for the job. This is similar to how a shelf stocker in a warehouse must be able to physically perform in the role, or a mover in a moving company needs to be able to lift a certain amount of weight as a job requirement.
There are of course times where one’s record will be in direct conflict with the role that they are seeking. For example, a bus driver with multiple driving infractions, and a laundry list of offences under the highway traffic act, is likely a poor candidate to drive a children’s school bus, and an employer can refuse to hire them based on their driving record.
Similarly, a person who has a criminal history of sexually abusing children may not be employable at a daycare, and the daycare can make the argument that no offences involving children is a bona fide occupational qualification for the role. That individual would certainly be a problematic hire, and would likely have parents irate. However, these are rare cases and certainly do not speak to the broader population of those who have paid their debts to society.
There are situations where individuals who may have a variety of suspended convictions can work perfectly well in completely unrelated settings including offices, retail, customer service or other roles. With the risk of re-offending so minimal, employers should not feel it necessary to hide these employees away and keep them out of sight, and should not think twice about hiring these employees in general. Given those statistics, such individuals are at no more risk to a business than long standing employees whom you have trusted for years.
The reality is that in most cases, these employees should not be treated any differently than the rest of your talented and loyal workforce. They have been forgiven for their past misdeeds, and as such it should not be held against them as something of a scarlet letter.
The prohibition against discrimination starts in the hiring process and moves through how the individual is treated throughout their employment. Information should be kept confidential from other colleagues (just as you would with other personnel information), and should only be revealed if the employee chooses to disclose it themselves. Otherwise, an employee with a suspended record should be more or less indistinguishable from their colleagues.
This topic can often make employers apprehensive on the vague premise of ‘safety.’ The truth is that employers can, should, and must keep employees safe, but that applies in all circumstances and not just in the instance of these particular employees. That includes following the requirements under the Occupational Health and Safety Act, as well as having good security and monitoring policies of your workplace premises, etc.
Many employers seek to incorporate background screenings or police clearances as part of their hiring process and would be hesitant to hire anyone with any sort of criminal past. This is where the distinction is key – employers can refuse to hire individuals whose convictions have not been cleared, however, things get trickier when it comes to those who have had their records effectively cleared.
Like any other protected human rights ground, an employer is ultimately in the driver’s seat, and they can make business and hiring decisions based on fit. However, that decision cannot in any way be tied to a protected ground – whether that’s because the prospective candidate is trans, disabled, or has a cleared conviction on their record. If faced with such a candidate who you choose not to hire, that choice must be made for other reasons, and employers should always clearly document why they have or have not chosen to hire an individual.
When you need help navigating a difficult situation, we’ve got you covered. Contact our office today to set up a consultation.