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Don’t get too personal during hiring process

Human rights legislation places constraints on information employers may collect
Tuesday, August 28, 2012
By Denise Lash & Rhonda Shirreff

It is important to hire competent and reliable employees. To that end, in order to make the most informed hiring decisions possible, employers often try to gather as much personal information as they can from job candidates. What they need to remember, however, is that human rights legislation in Ontario place practical constraints on what information an employer may collect during the hiring process.

Underlying human rights legislation is the concept that employment decisions should be based on a candidate’s ability to do the job rather than on personal factors unrelated to job requirements, qualifications and performance. The Ontario Human Rights Code guarantees the right to be free from discrimination in employment on the basis of a number of protected grounds: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed/religion, sex, sexual orientation, age, record of offences, marital status, family status and disability.

While it is not illegal to ask candidates questions that relate to the protected grounds, caution is strongly advised. An employer who asks for information about, for example, a candidate’s religious affiliation or medical condition opens the door to a potential human rights complaint. The danger is that a candidate who has been passed over for legitimate reasons might seize the opportunity to allege discrimination.

In light of the requirements of the code, it’s important to take particular care in drafting employment advertisements, requesting personal information on job applications and interviewing candidates.

Advertisements should not differentiate on the basis of a protected ground. They should describe requirements and expertise directly related to the job. For example, it is reasonable and job-related to advertise for a concierge who speaks clear English. It runs afoul of the code, however, to advertise for a concierge who speaks English without an accent.

Most employers understand that application forms should not include questions directly related to any of the protected grounds. What they often overlook, however, are requests for information or documentation that may indirectly reveal details that could lead to a human rights complaint. For example, it is a common mistake to ask for a candidate’s social insurance number prior to making a conditional offer of employment because it can be used to access other personal information, including a candidate’s age and date of arrival in Canada.

Information requested on job applications should be limited to what the employer needs to make the initial assessment of the candidate.

Just as employers should not ask for information on a job application that relates to a protected ground, they should also avoid such inquiries during the interview process. Nevertheless, they may expand on the scope of bona fide job-related questions at the interview to the extent necessary to determine the candidate’s ability to perform the job.

Because employees often perform all or a significant part of their work on building premises, an employer may decide to make an offer of employment conditional upon a clear criminal record check. While this may be a prudent practice, the code prohibits discrimination in employment because of “record of offences.” The provisions of the code suggest that an applicant, or an existing employee for that matter, may be refused employment or fired if convicted of an offence under the Criminal Code and has not been pardoned for such offence. However, an employer will violate the Ontario Human Rights Code if a candidate is not hired because of a criminal conviction that has been pardoned or a conviction for a provincial offence, unless the employer can establish that a clear criminal record is a bona fide occupational qualification.

Insofar as inquiring about a candidate’s record of offences on a job application, the only permissible question on the application form is: Have you ever been convicted of a Criminal Code offence for which a pardon has not been granted?

During an interview, the employer may expand on this question, provided that this is necessary to determine the candidate’s ability to perform the essential duties in question.

With the foregoing in mind, employers are advised to audit their hiring practices to ensure compliance with the underlying principles of human rights legislation.

Denise Lash and Rhonda Shirreff are condominium experts in the condominium law group at Heenan Blaikie LLP.

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