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Full Story:
Beware if you have a practice of screening out overqualified candidates. You may be running afoul with the law.
The Federal Court of Canada has ruled that, when an employer establishes a rule against hiring overqualified candidates, there can be a discriminatory effect on overqualified immigrant candidates. This is because immigrants are more likely to be overqualified for the position for which they are applying and are more likely to be screened out.
The ruling involved Mr. Gian Singh Sangha, a Sikh of East Indian origin who immigrated to Canada in 1996, and Mackenzie Valley Land and Water Board in the Northwest Territories, a government agency.
Mackenzie Valley Land and Water Board posted an ad in 2001 for four regulatory officer positions, jobs that require an undergraduate degree in science or environmental studies or a post-secondary diploma in environmental management.
Sangha, a former university professor in environmental science who held a PhD from a German university, was one of 38 applicants and the only one with a post-graduate degree who made it to the interview stage. Despite the fact that interview scores placed Sangha higher than most of the other candidates, the hiring committee unanimously decided not to offer him the job because they felt he was overqualified for the position and would quickly become bored with the work.
When Sangha found out, he became depressed and took anti-depression drugs. He worked as a landscape gardener for about six months. Then, in March 2004, he found work as a bookkeeper at an electric company run by family friends and stopped seeking work in the environmental science field.
Sangha launched a complaint against Mackenzie Valley Land and Water alleging that they had discriminated against him by refusing to hire him. He asked to be placed in the position when it next became vacant, compensation equalling three years’ salary and damages for pain and suffering.
By refusing to consider Sangha because he was overqualified, the Human Rights Tribunal found that Mackenzie Valley Land and Water Board discriminated against Sangha based on his national or ethnic origin. He was awarded $9,500 in damages for pain and suffering but the tribunal refused to compensate him for lost wages. It found he had not shown the likelihood he would have been hired for the position in any event.
Mackenzie Valley Land and Water appealed the ruling to the Federal Court of Canada.
The Federal Court of Canada agreed that screening overqualified candidates can have a discriminatory impact on immigrants like Sangha. It further found the tribunal erred in concluding Sangha did not have a serious possibility of acquiring the position had he not been overqualified. The court set aside the tribunal’s decision on the amount of damages and remitted the issue for reconsideration. It is still unclear what damages could be awarded for lost wages in such a case.
For more information on this case or to discuss how this may impact your organization and steps that you can take to ensure legal compliance, please contact Dave Hagel at 905-637-5673 or at dave@highperformancehr.ca.
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