November 26, 2015 By: Dana Du Perron
Print

Toronto-based web design company Vestra Inet caused widespread outrage this week when its job posting for a content writer and SEO specialist included the following line: “Please note that the Position requires filling in the responsibilities of a receptionist, so female candidates are preferred”.

It is surprising that such a line could make it into a public posting in this day and age, and as a result, the company has been the subject of public ridicule for what many view as an archaic and outdated attitude.

From a legal standpoint, however, companies who engage in practices of this kind could be faced with human rights challenges, from men and women alike.

Ontario’s Human Rights Code prohibits discrimination in employment on the basis of sex. If an employer is distinguishing between men and women for the purposes of filling a position, the employer will have to show that there is a “bona fide occupational requirement” (“BFOR”) – that is, a real and pressing reason – why either a man or a woman is required for a particular position. Such a BFOR will only truly exist in limited circumstances. For example, a shelter for abused women might only hire women to work directly with the victims, and this may be justifiable under the Human Rights Code as the victims may not be comfortable being surrounded by men. It would thus be a BFOR that employees be female.

Even if the required characteristic is more commonly perceived as a “male” or “female” trait, it will run afoul of the Human Rights Code to distinguish between men and women when a focus on the particular trait would suffice. For example, if a job requires someone to be able to lift a certain weight, preference cannot be given to men, who tend to be stronger. Preference must be given to the candidate, man or woman, who can do the task.

There is no rational basis for preferring women for a position that will require some receptionist duties. Men are just as capable at performing those roles. Accordingly, postings like Vestra Inet’s are discriminatory and could elicit human rights complaints both from men who believe they did not receive consideration for the role as a result of their sex, as well as from women who believe they have otherwise been pigeon-holed into certain positions with the company as a result of their sex.

While companies could easily avoid very public gaffes by ensuring statements that distinguish between men and women are not explicitly included in job posters, it is more important for attitudes to shift away from viewing certain jobs as “male” or “female”. The goal of the Human Rights Code is to foster equality in all areas of life, including employment, so that everyone, regardless of their sex (or other enumerated ground), is free to pursue the career they wish without being prevented from doing so by artificial barriers.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law