Human Rights and the Hiring Process

R. Mark Fletcher, LL.B

Grosman, Grosman & Gale LLP
© Leader Quest Inc. and R. Mark Fletcher

Federal and provincial legislation has placed an emphasis on protecting human rights in the workplace. The legal protection afforded to employees is not limited to employees but includes prospective employees and job seekers. Employers have a legal duty to ensure that the employer or its agents (such as recruiters) do not subject employees and any prospective employees to illegal discrimination. This legal duty commences at the beginning of the hiring process. Employers are advised to adopt and follow non-discriminatory hiring policies and practices. This article will briefly explore some potential human rights concerns that may arise during the various stages of the hiring process and will provide some general information about employer compliance with human rights laws.

The Job Advertisement

Employers must be careful to avoid illegal discrimination when advertising or posting a position. For example, in Ontario, according to subsection 5(1) of the Ontario Human Rights Code (“the Code”), employers are prohibited from advertising or soliciting applications from individuals that discriminate on the basis of certain prohibited grounds. According to subsection 5(1) of the Code:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 5 (1); 1999, c. 6, s. 28 (5); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (5).

It should also be borne in mind that the complainant is not required to prove any intention to discriminate on the employer’s part. Provided that the complainant can establish that they have been subjected to differential treatment based on a prohibited ground, the employer or prospective employer may be held liable for illegal discrimination, whether or not the employer actually intended to discriminate.

For instance, if a job advertisement states, “the association is looking for a young and energetic person to fill this position” it could be construed as discriminatory on the basis of age. The message from the advertisement is that older job candidates are not welcome to apply. If a job advertisement for a cafeteria in a charity’s office building indicated that it was accepting applications for “hostess” and “busboy” positions, such an advertisement may be found to be discriminatory on the basis of sex. The term “hostess” is associated with females while the term “busboy” is associated with males. Accordingly, neutral language that does not indicate or suggest a discriminatory preference is recommended for job advertisements so that all individuals qualified to apply will feel welcome to submit an application.

Similarly, employers should target and recruit prospective applicants in a non-discriminatory manner. Publishing a job advertisement in a location or through a medium that is unlikely to reach certain individuals on the basis of the individual’s membership in a certain group could lead to a finding that the employer has discriminated on the basis of a prohibited ground. If, for instance, a job advertisement was posted in a location or publication that was designed to promote applications from one gender over the other, this may constitute illegal discrimination on the employer’s part. While employers will need to focus their efforts on attracting the best qualified candidate for the position, employers must be cautious about the medium and location selected for the job advertisement, such that applications from all qualified individuals, regardless of membership in a certain group, is promoted.

The Application For Employment

Many employers rely on employment applications to learn more about prospective employees. Employers must be careful to ask only questions that are necessarily connected to the legitimate qualifications required for the position. Questions designed to inform the employer about the prospective employee’s age, birthplace, sex, sexual orientation, marital status, race, religion, citizenship, record of offences, health and family status would probably be found to constitute illegal discrimination.

Similarly, applicants should, in most cases, not be asked to submit a picture of themselves since this could be potentially discriminatory since the picture would reveal certain characteristics about an individual, which would not be connected to the legitimate and reasonable qualifications required for the position. It is recommended that employers avoid any questions which reveal irrelevant personal characteristics or information about the applicant and which are unrelated to the employers’ reasonable and legitimate job expectations or requirements.

For instance, questions about the number of dependents an applicant has or whether the applicant is married should be avoided as this may be potentially discriminatory on the basis of both family and marital status. It is recommended that employers seek legal advice and or the advice of the applicable provincial or federal human rights commission regarding its application form to ensure that the questions on the application comply with applicable human rights legislation.

The Job Interview

Similar to the application for employment, interviewers must refrain from asking questions designed to elicit prohibited personal information from a candidate. This can be very difficult given that in the context of a job interview, certain information may be revealed in the course of the dialogue between the interviewer and the candidate. The employer must be careful not to elicit prohibited information and, in the event that prohibited information is revealed, to not act on such irrelevant personal information, particularly when deciding whether to offer the applicant the position.

For instance, if the candidate volunteers information about having children, the interviewer should be careful not to ask questions about childcare arrangements. Moreover, the employer must not make a decision about the candidate on the basis of such information. Employers are exposed to potential liability for discrimination if it can be established that the disclosure of irrelevant personal information impacted the hiring decision. It is recommended that employers make it clear to the person(s) handling the interview that certain types of personal information should not be elicited and that the questions should be restricted to the individual candidate’s qualifications and suitability for the position. Questions about an individual’s relevant education and job experience are appropriate. Personal questions such as where the applicant’s parents were born or future retirement plans are potentially discriminatory and should be avoided.

Information For Job Applicants

Job applicants may be asked irrelevant personal questions that make the individual applicant uncomfortable. If the applicant believes that the question being asked by the interviewer is potentially discriminatory, the applicant has the difficult choice of answering the question or politely declining to answer. In any event, the applicant is in an unenviable position. The applicant may answer the question and be open and forthright. If the applicant is not offered the position, the individual may be left to wonder whether it was his or her answer to the potentially discriminatory question that determined the individual’s fate. If the applicant declines to respond to the question, and the applicant is not offered the position, the individual is left to wonder whether it was the decision not to respond to the potentially discriminatory question that resulted in the application being unsuccessful.

Ultimately, there is no right or wrong answer to this scenario. However, in both cases, the applicant must never lie or misrepresent the truth to the prospective employer. An applicant who is dishonest with the interviewer may be terminated with just cause if the individual is ultimately hired and the employer later discovers the dishonest statement or misrepresentation.

An applicant who is faced with this difficult situation is advised to use their best judgment in the circumstances. If the individual believes that he or she has been subjected to illegal discrimination, it is recommended that the individual contact a lawyer and or the applicable human rights commission to seek information about his or her legal rights.

Concluding Remarks

The protection of human rights in the workplace has become an increasingly important public policy objective. Canadian courts have consistently recognized that human rights legislation has become quasi-constitutional law in the sense that the rights guaranteed by the legislation are inalienable and fundamental human values. Employers are held to very high standards of compliance since discrimination in the workplace can have a profound and stifling impact on individuals who are subjected to illegal discrimination. Accordingly, liability for discrimination will be found, even in cases where no discrimination was actually intended.

It is recommended that employers take proactive steps to minimize the potential for either direct and or indirect discrimination in the workplace by establishing non-discriminatory hiring policies and practices.

Finally, it is recommended that job applicants who feel that they have been subjected to illegal discrimination consult with a lawyer who can provide advice about their legal rights and possible remedies.

This article may be reproduced for distribution as a learning tool for organizations in the not-for-profit sector provided attribution is made to R. Mark Fletcher, LL.B. of Grosman, Grosman & Gale LLP, Toronto; and to Leader Quest Inc.

This article contains material of general interest only and is not intended to provide legal advice or to replace a consultation with a legal professional on any particular matter. R. Mark Fletcher can be reached at mfletcher@grosman.com or 416-364-9599.