This is the fifth instalment in our Top 10 Issues for Employers series. Interviewing prospective employees can be a difficult process for the applicant and the employer alike. For the employer, aside from ensuring that the best applicant is selected, the interview process directly engages human rights and privacy laws. In general, these laws have an impact on what can be said and done in an interview and provide individuals with legal recourse where employers cross the line during the hiring process. Management and human resources staff can manage risk by clearly setting out, in advance, formal interview policies and questions that target the applicant’s ability to perform the essential duties of the position. Overall, employers should strive to create a hiring process that is consistent, fair, objective and comprehensive, without collecting more personal information than is necessary to make the hiring decision.

OVERVIEW

Employers may not refuse employment or otherwise discriminate against a person on grounds protected by applicable human rights legislation. Protected grounds vary by province, but generally include (without limitation) race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation and age. Questions relating to any prohibited grounds should be avoided as an applicant may draw the inference that the hiring decision was based on something other than merit. This can occur even if the employer did not intend to discriminate. Employers must be aware of how the interview process, which may include in-person questions, written exams, and application forms and background checks, may contain subtle forms of discrimination that violate human rights law. During the hiring process, employers also have a duty to accommodate applicants’ needs related to any particular protected ground. Unless the accommodation results in undue hardship for the employer, a failure to accommodate may give rise to a claim of discrimination.

A human rights complaint exposes employers to potential reputational damage in addition to potential monetary damages. In most jurisdictions, an individual would only have to point to facts that could establish discrimination. After that, the employer then has to prove there was no discrimination, which leads to the unenviable position of an employer having to defend its hiring practices publicly.

In addition, employers should be conscious that the interview process is further restricted by privacy laws. Generally speaking, an employer should only collect, use and disclose personal information for legitimate purposes and only as much personal information as is necessary for such purposes. All forms of personal information may only be collected with the consent of the applicant. In interviews, consent should be implied for most questions related to the position. In any event, employers should try to collect only the information necessary to make the hiring decision. Over-collection is prohibited and can lead to problems for employers.

THE DOS AND DON’TS

Before the Interview

DO:

  • Create a uniform hiring process for all applicants.

Draft interview questions in advance based on the essential duties and requirements of the position. Develop the “answers” and assess applicants based on these objective criteria. Ask all applicants the same questions.

These measures guard against informal subjective assessments entering into human-resource decision-making.

  • Prepare a panel of interviewers to assess applicants according to the hiring process.

A panel assessing an applicant’s answers allows for a more diverse and objective perspective. A panel will also provide multiple witnesses to the interview, one of which should record thorough notes.

  • Offer to accommodate an applicant, if he or she requires accommodation, before the interview.

Applicants are generally responsible to inform potential employers of their needs and providing sufficient detail for the employer to respond accordingly. Once aware of the need to accommodate, employers should cooperate with the applicant in creating an interview or hiring mechanism that addresses the duty to accommodate arising under human rights legislation.

DON’T:

  • Make hiring decisions using informal, ad hoc.

While an informal conversation with an applicant may be appealing, an uncontrolled, subjective process can lead to subconscious bias and, in some cases, discrimination allegations. Having a plan and a written procedure before an interview will give structure and objectivity to questioning without eliminating the desirable conversational aspects.

  • Be unprepared.

An interviewer who is unprepared for an interviewee will tend to focus on a person’s superficial characteristics rather than their merit.

  • Use social media screening without the consent of the applicant and without considering whether you need such personal information.

An employer must obtain an applicant’s consent to collect their personal information. Personal information on social media is no different. An employer should not attempt to skirt privacy rules by using their personal account to screen an applicant or rely on a third party to conduct the screening.

  • Rely on the information on social media to the exclusion of traditional sources of personal information.

In general, employers should be wary that the information obtained on social media may be unreliable, inaccurate, and usually unnecessary.

During the Interview

DO:

  • Ask an applicant about his or her qualifications, relevant experience, training and previous positions.

Human rights and privacy laws do not limit the right of employers to obtain legitimate information about the people they may hire. All interview questions and topics must be designed to elicit job-related information concerning the applicant’s relevant knowledge, skills and ability to perform the key duties of the position.

  • Describe the job requirements such as overtime, weekend work or travel.

Framing questions in terms of job requirements is an effective way of removing discriminatory elements in questions.

  • Take notes, take notes, take notes.

Taking and retaining notes and other written records of the interview will provide contemporaneous evidence in any discrimination claim before a human rights tribunal or the courts. While taking notes cannot immunize employers to claims, once started, such evidence can be a powerful tool to defend a claim.

DON’T:

  • Ask questions that provide information regarding a prohibited ground of discrimination.

The following is a non-exhaustive list of general topics to avoid in an interview:

  • Race, colour, ancestry or place of origin

If you need information about an applicant’s immigration status, simply ask whether the applicant is legally entitled to work in Canada. Avoid asking other questions related to a person’s educational institution, last name or any clubs or affiliations that are designed to indicate their race, ancestry or place of origin.

  • Religious beliefs or customs

Employers may not ask about a person’s religious beliefs or customs. If you need information about when an applicant can work, ask whether he or she can work overtime or weekends if that is a legitimate job requirement.

  • Sexual orientation

There is rarely (if ever) a reason you need to know an applicant’s sexual orientation. Questions about a person’s personal relationships should be completely avoided in almost all cases.

  • Marital or family status

Instead of asking about a person’s family or marital status, simply ask if the applicant can work the hours required of the position or if they are able to travel or relocate.

  • Physical or mental disability

Avoid asking about an applicant’s general state of physical or mental health or any history of sick leaves, absences and workers’ compensation claims. Employers may, however, ask the applicant whether they are able to perform the essential duties of the position and describe the physical and mental requirements of the position.

  • Gender

Avoid questions about gender, including questions about pregnancy, breastfeeding, childcare arrangements and future plans to have children.

  • Age

While employers may ask an applicant for their birthdate on hire, the age of the applicant is rarely relevant unless there is a question as to whether the applicant has reached the legal working age, which varies from province to province.

  • Criminal or summary convictions

The permissibility of questions relating to criminal history will vary from province to province. In general, employers may ask the applicant about their criminal record where there is a legitimate reason to know, such as when the job involves a position of trust or working with vulnerable persons.

  • Former names

Avoid asking a person about their former names unless needed to verify previous employment and education records. Avoid asking about names to determine someone’s origin, their maiden name or if they are related to another person.

  • Language

What languages an applicant speaks may cross the line if they are really questions about race, place of origin or ancestry. The exception is, obviously, where the ability to communicate in certain languages is specifically required for the position.

  • Source of income

It is recommended that employers avoid asking about an applicant’s source of income, as this is irrelevant and some sources have a social stigma attached to them, such as social assistance, disability pension and child maintenance.

  • Ask questions designed to illicit irrelevant information or information unrelated to the legitimate job requirements.

Privacy laws require that employers only collect personal information that a reasonable person would consider appropriate in the circumstances. Again, the employer must only do so with consent of the applicant. The best practice is to only collect information that is reasonably necessary to make a hiring decision.

After the Interview

DO:

  • Keep the interview notes and documentation for as long as possible.

Different jurisdictions have different limitation periods in relation to bringing human rights or privacy complaints or other types of litigation. Employers should keep all materials from the hiring process for as long as necessary to comply with applicable legislation and protect themselves from any possible litigation.

  • Ask the selected individual(s) for further information.

Once hired, it is permissible to ask a person for further documentation necessary to maintain and establish the employment relationship if there is a legitimate need for that information. When an offer of employment is accepted (or conditional on certain checks being completed with the consent of the individual), it will generally be necessary to collect an employee’s birth date, social insurance number, personal contact information and all other personal information needed to establish the relationship, including information needed to enroll the employee in benefits plans and payroll.