Justin W. Anisman is an Employment Lawyer and principal of Anisman Law. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.
Discrimination in the course of a job interview or in the making of hiring decisions remains too common across Ontario. While the job interview is an opportunity for both employers and job seekers to learn about each other and to determine suitability or fit for the job at hand, attempts by an employer to solicit information that relate to the “protected grounds” (i.e. race, age, sex, gender, identity etc.) under the Ontario Human Rights Code is generally off limits.
Ontario workers are protected from discrimination even at the pre-hiring, interview or application stage of employment. It is important, therefore, for both employees and employers to understand what questions are appropriate and which are not.
This article will review some of guidelines around pre-employment screening during the interviewing and hiring process.
Job Interview Guidelines
Issues of human rights and discrimination need to be addressed by an employer in advance of the job hiring process. Hiring managers and human resources staff need to be provided with training and education to identify and eliminate discrimination in the workplace. The hiring process must be fair.
Best practices for employers in the course of job interviews include:
- Have a multi-person panel conduct formal interviews and have the panel reflect the diversity available in the organization.
- Develop a set of interview questions in advance and ask all applicants the same questions.
- Base the questions on the job’s essential duties and “bona fide” requirements.
- Make sure that any questions asked comply with the Human Rights Code and avoid questions requesting “sensitive information” unless necessary.
- Create an answer guide showing desired answers, along with a marking scheme, and have each panel member independently record and score each candidate.
Employers should avoid making hiring decisions based on informal or subjective assessments by the interviews because these “feelings” of suitability are more likely to lead to subconscious biased hiring decisions.
Requesting Sensitive Information in the Job Interview Process
Sometimes information, that could be seen to be related to a ground of discrimination under the Human Rights Code, is necessary because of the specific requirements of a job. Where this is the case, the Ontario Human Rights Commission recommends only requesting that information after an offer of employment is made that is conditional on the employee meeting the bona fide occupational requirements.
Types of information that is considered sensitive include:
- Driver’s licence
- Birth certificate
- Work authorization issued by Immigration Canada
- Educational or professional credentials
- Social Insurance Number
- Information about health or age necessary for pension, disability, superannuation, life insurance and benefit plans
- Police record checks
- Drug and Alcohol Testing
- Psychological testing, if legitimately required for assessing ability to do the job
- Next-of-kin or person to be notified in case of emergency
- Insurance beneficiary
- Accommodation needs
These documents and information are sensitive because they often reveal a person’s age, sex, gender, place of origin, date of arrival in Canada, residency status, gender identity, family status, marital status, sexual orientation or disability.
For example, considering hiring a truck driver. While they need to have a valid driver’s license, an employer should avoid asking to see their driver’s license until after a conditional offer of employment is made to avoid any claim of discrimination related to their gender identity, age or disability.
What is a Bona Fide Occupational Requirement?
As I have described briefly in my earlier article on Age Discrimination and Forced Retirement, the Courts consider a two-part test for determining whether a bona fide occupational requirement exists:
- The employer must establish that the retirement was imposed honestly, in good faith, and in the belief that the requirement is rationally connected to the performance of the job, and not for some ulterior motive; and
- The employer must establish that the job requirement is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.
Any bona fide occupational requirement must be inclusive and must accommodate individual difference up to the point of undue hardship. It is important that each person be assessed against their own personal abilities instead of being judged against group characteristics.
Drug and Alcohol Testing and Discrimination during the Job Interview and Hiring Process
It is discrimination on the basis of disability to require job applicants to take a drug or alcohol test as a part of an application or interview screening process unless the employer can satisfy the Bona Fide Occupational Requirement (BFOR) test. Whether a drug or alcohol test is a BFOR is often the source of human rights litigation.
An excellent example of how a Human Rights Tribunal wrestles with this problem can be seen in the case of Dennis v Eskasoni Band Council, 2008 CHRT 38. In this case Dennis argued that the employers drug and alcohol testing discriminated against people with alcohol addiction and dependency. The employer argued that the testing was necessary to ensure the safety of its workers.
The Test followed by the Tribunal was as follows:
- Does the practice appear discriminatory?
- Has the Employer Established it to be a BFOR?
In terms of the first part of the test, the Tribunal held as follows:
 A drug testing policy that has the effect of depriving these individuals, who fall within the protected class of disabled persons, of employment opportunities, is thus prima facie discriminatory
It then went on to consider:
- Did the employer adopt its policy for a purpose rationally connected to the job being performed?
- Did the employer adopt the testing in good faith?
- Is the testing reasonably necessary to the accomplishment of the purpose or goal of safety in the workplace, including:
- Is alcohol impairment a safety hazard?
- Is the drug and alcohol screening an effective means to detect the presence of a hazard in the workplace?
Ultimately, the Tribunal concluded that the employer’s drug and alcohol testing policy was reasonably necessary for the accomplishment of the employer’s goals of protecting its employees from injury and its property from damage.
Criminal Background Checks and Discrimination during the Job Interview and Hiring Process
The Human Rights Code prohibits discrimiantion on the basis of “record of offences”. Further, crimnal background checks can uncover information about a candidate’s age, citizenship and other “protected grounds”. Therefore, like drug and alcohol testing, it is discrimination to require job applicants to subject to a criminal background check as a part of an application or interview screening process unless the employer can establish that it is requires as a Bona Fide Occupational Requirement (BFOR).
If an employer wants to conduct a criminal background check, they have to first establish that there is a valid occupational reason to do so. The job application and/or conditional offer must clearly specify the check is necessary as part of the position. Written consent is a required.
Any type of background check should be conducted in good faith. An employer should gather as much information as possible before hiring a candidate and be reasonable about the relevance of the information gathered as it relates to the candidate’s ability to perform the job.