This piece supplements Criminal Background Checks: Hiring Decisions and Human Rights. Read the full article now.

As a result of a 1999 court case in British Columbia, the Supreme Court of Canada came up with a process to determine whether or not there is a Bona Fide Occupational Risk. It was initially based on drug testing but could easily apply to criminal reference checks:

a)    You need to establish a rational connection

Is there a reasonable connection between the conviction and the position? You need to identify the general relation between the convictions and the role and responsibilities of the position to determine if it is rationally connected to the performance of the job. For example, a person with 22 assault convictions probably should not work as a janitor in a nursing home.

b)    Establish good faith

Did the employer adopt the standard in an honest and good faith belief that it was necessary to the fulfillment of a legitimate work-related purpose?

This step looks at the subjective element of the standard. Consider whether the standard was adopted with no intention of discriminating against an employee or group of employees. Just because you don’t like people who drink and drive does not give you a legitimate cause to use that information to deny a person a position based on a an impaired driving conviction in a position not associated with driving.

c)    Establish reasonable necessity

Is the rule reasonably necessary to the accomplishment of that legitimate work-related purpose?

In this step you need to examine whether the standard is reasonably necessary. After examining the elements of a position, the level of security risk and the seriousness of a criminal offence, is the denying of a person a position a reasonable necessity?

Here are some questions to ask in considering whether the standard is reasonably necessary.

• What level of responsibility does this position carry?
• Will this person work with others?
• Does this person have access to money or signing authority?
•  What are my clients’ risks?

Source: Garda Pre-Employment Screening Services.