Employer Requirement of Permanent Residency held to be Discriminatory

In the decision of Haseeb v. Imperial Oil Ltd., the Human Rights Tribunal of Ontario determined that an employer discriminated against a prospective employee because it required the ability to work in Canada on a “permanent basis” (citizenship or permanent residency) as a condition of employment.

The applicant was an international engineering student at McGill University. At the conclusion of his studies, the applicant would have qualified for a three year postgraduate work permit (PGWP) upon graduation, which would have entitled him to work in Canada. He applied for a job with Imperial Oil. The company processed him through every step in the job application process and had provided him with an offer of employment, conditional upon providing documentary evidence of his citizenship or permanent residency. He could not provide this evidence and the offer was rescinded by the company.

Under the Code, “citizenship” is a protected ground. Imperial Oil argued that its requirement for an individual to “work in Canada on a permanent basis” was an immigration issue and that the Code protections based on citizenship did not apply. The Tribunal disagreed and concluded that the distinction created by Imperial Oil between those with permanent residency or citizenship as compared those with three year post graduate work permits was discriminatory on the basis of citizenship.  The Tribunal found that the distinction created unjustifiable categories in the hiring process.

Imperial Oil also argued that the requirement constituted a bona fide occupational requirement related to succession planning, training costs and investment in recruits for long term employment. While the Tribunal did undertake to review whether or not there could be a bona fide occupational requirement where there was indirect discrimination, it determined that the occupational requirement (i.e. citizenship or permanent residency) were not linked to the performance of essential job tasks, that the requirement was not adopted in honest and good faith, and there was no evidence presented of the measure of the risk to its succession planning strategy. As such, the Tribunal rejected the employer’s position and concluded that the company’s practice of not hiring any PGWP holders was unjustified.

If employers have a policy which requires permanent residency or Canadian citizenship as a condition of employment, this practice may be discriminatory and should be reviewed immediately. While an employer is entitled to require proof of eligibility to work in Canada as a condition of employment, a blanket prohibition against hiring any international students with a PGWP was not justifiable. This case should not be read as a complete prohibition against the requirement for permanent residency or citizenship as a condition of employment. However, in order to justify such a requirement, an employer must clearly and objectively establish a rational connection between such a condition and the essential tasks of the position. In addition, an employer would have to establish that an individual without Canadian citizenship or permanent residency could not be accommodated without creating undue hardship.