When does hiring the “right person” for the job lead to potential discrimination?

potential discrimination

When companies overlook an over-qualified visible minority for one that’s the “right fit”, it can lead to potential discrimination.

Any employer who has posted a job may know that job postings often bring an array of candidates — some who don’t quite meet the job requirements, some who do, and some who far exceed them.

Though there may not be an official human resources policy on not hiring over-qualified applicants, some companies may screen out candidates whose qualifications exceed the specific job requirements as a way of trimming the field.

But beware: companies that have a policy not to hire over-qualified individuals for open jobs may be putting themselves in legal hot water.

In Sangha v. MacKenzie Valley Land and Water Board, the Canadian Human Rights Tribunal sided with a visible minority immigrant who argued that the board used the fact that he was over-qualified to hide the real reason he wasn’t offered a job: unlawful discrimination. The decision cost the MacKenzie Valley Land and Water Board $9,500, which the tribunal awarded to the complainant for pain and suffering.

Background

The MacKenzie Valley Land and Water Board posted a newspaper advertisement for four regulatory officer positions based in Yellowknife, Northwest Territories. The job ad drew 38 applicants, some of whom were under-qualified for the position, and some, like Gian S. Sanga, who were over-qualified with a PhD.

Mr. Sanga was interviewed, but wasn’t offered the job. Instead, the job was offered to four other candidates. Two declined and so the board offered another two candidates the open positions.

One of the reasons the board said it didn’t offer Mr. Sanga the job was because he was over-qualified and they felt he would be bored with a job one described as “a step above tedious.” Mr. Sanga had held university teaching positions in Western Europe and the U.S. and the board was worried he would lose interest in the job and leave early, costing the board money. But Mr. Sanga said he applied for the position because he was looking for Canadian work experience. 

Mr. Sanga and the Canadian Human Rights Commission argued that the reason he didn’t get the job was due to discrimination on the grounds of age, nationality or ethnic origin. In the end, the tribunal agreed on the grounds of nationality or ethnic origin.

Why over-qualification hurts visible minorities and older applicants

The tribunal heard expert testimony from sociologist Dr. Jeffrey Reitz, who concluded that excluding over-qualified candidates largely hurts visible minority immigrants, who don’t have the same options to seek out work more suited to their experience and skill-set. Dr. Reitz testified that immigrants are, on average, more highly educated than native-born Canadians. That’s because the biggest group of immigrants to Canada are independent or economic immigrants, who are picked based on a points system that privileges higher education and professional experience. 

At the same time, visible minority immigrants face barriers trying to find work here that matches their qualifications. As a result, they often seek out lower skilled jobs. 

While employers may worry that over-qualified individuals may become bored with the work and leave for other opportunities, Dr. Reitz argued that that’s not the case with visible minority immigrants because those opportunities often don’t exist for them. 

Such was the case with Mr. Sanga, who came to Canada from India in search of a better life. Though he worked as a professor in India and the U.S., and as an environmental scientist for the German federal government, Mr. Sanga was unable to find permanent work in Canada that suited his skill-set. That led to him to apply for a job as a regulatory officer with the MacKenzie Valley Land and Water Board — a job for which he was over-qualified, but that would have offered him and his family a stable income for three years.

Takeaway

The case shows how courts and tribunals are taking a skeptical look at companies who dismiss over-qualified candidates.

If you’re an employer, some euphemisms can get you into trouble. Simply saying you screened out a job seeker because they were over-qualified won’t help you avoid liability. In fact, as the case above shows, courts and tribunals are taking a hard look at employers who use over-qualification as a reason to dismiss candidates and will not hesitate to find that the real reason someone wasn’t hired was a ground protected by human rights legislation.

And if you’re a job seeker in such a situation, don’t give up. Consider whether you have a viable claim, and if so, speak to an expert about what you should do next.

Stuart Rudner

I am the founder of Rudner Law. In 2016, 2017, 2018, 2019 and 2020, I was selected by my peers for inclusion in ‘The Best Lawyers in Canada’ in the area of Employment Law and have been repeatedly named in Canadian HR Reporter’s Employment Lawyers Directory (a comprehensive directory of the top employment law and immigration law practitioners in Canada), and was also named one of Canada’s top Legal Social Media Influencers.