Employers usually promise job seekers that they are looking for the most qualified workers. It is in their interests to do so. But occasionally they do not wish to hire the most qualified applicants.
What if a slow economy produces many clearly over-qualified applicants and the employer is suspicious that they will not be challenged by entry level positions. The employer already may be experiencing high turnover and will seek to avoid short-termers who are desperately seeking any employment but who are not necessarily serious about the position advertised. Over-qualified employees can be a challenge to manage when they are working at well below their experience and skill level, as well as their earning potential.
As with mismatches where the employee is decidedly under-qualified for the job, can an employer choose not to hire the over-qualified applicant?
Applicants have no particular right to demand that any employer hire them or to be granted any job in particular. Freedom of contract and employer prerogative are the underlying theories in play. Subject to the laws against unjust discrimination, the employer is free to hire anyone it chooses, including lesser qualified applicants who might better suit the role.
The Sangha Case
Dr. Gian Singh Sangha was 51 years old when he immigrated to Canada from India in 1996. He was well educated and experienced in his field of environmental science. However, he was not able, for the first five years after arriving in Canada, to obtain a job at his level of qualification. Then he applied for one of four entry-level positions open at a Northwest Territories regulatory agency called the Mackenzie Valley Land and Water Board.
The employer, Mackenzie, screened Sangha out in the recruitment process on the ground that he was over-qualified for the job. The agency had suffered high turnover and it assumed Sangha was more momentarily keen on the job than motivated and committed to it. After all, why would someone want to work and be paid well below their qualifications?
Since Mackenzie was a federally-regulated employer, the Canadian Human Rights Act applied. Sangha focused upon his immigrant and ethnic status in the denial of the job opportunity. The Canadian Human Rights Tribunal, in Sangha v Mackenzie Valley Land and Water Board, surprisingly concluded on the basis of expert evidence that “the experience of applying for a job for which one is overqualified, or working in such a job, is disproportionately an immigrant experience.”
Applicants have no particular right to demand that any employer hire them or to be granted any job in particular. It ruled that employers “should not rely upon impressionistic markers that the overqualified are ill-suited for the job because they will become bored/unmotivated or cause morale problems or quit prematurely.” Accordingly, the Tribunal determined that Sangha was discriminated against on the basis of national and ethnic origin, even though Mackenzie’s hiring process was completely neutral on its face.
Sangha was awarded $9,500 for pain and suffering because the Tribunal was convinced that if the discrimination was removed, it remained only a “mere possibility” that he would be hired. Still, Sangha was not satisfied. He demanded compensation for three years of lost earnings (it took some five years to get the Tribunal’s decision) at the rate of $55,000 per year, and that an order issue for Mackenzie to hire him. He appealed the Tribunal’s decision to the Federal Court.
Some nineteen months after the Tribunal’s decision, a Federal Court judge agreed with Sangha that the Canadian Human Rights Tribunal made an error when it found he probably would not have obtained the job anyway. The appellate judge was of the view that Sangha had a “serious possibility” of getting the job and he sent the case back to the Tribunal for final remedy. That follow-up decision is not publicly reported.
The Sangha decision is the only law in Canada on the issue of over-qualification, and it is not the strongest precedent. It turned on the questionable finding and generalization, that refusing to hire over-qualified applicants – despite valid business reasons for doing so – was tantamount to discrimination on the basis of national and ethnic origin.
Assessing and integrating the qualifications of foreign trained workers has long been a challenge. The Sangha decision does not stand for the proposition that employers must privilege foreign educated and experienced workers. Litigating one’s way into a job is a dubious strategy for several reasons. Judges should be reluctant to over-ride employer prerogative to hire employees of their choosing, absent palpable discriminatory intent and effect. Especially in times of sturdy economic decline, many over-qualified individuals compete for lower level jobs and the ethnic argument is much less compelling.