In today’s competitive employment marketplace, employers have developed creative methods for advertising job opportunities and recruiting job applicants. While there is nothing wrong with creativity, it is important to keep in mind that certain limits must be respected. Human rights legislation across the country aims to prevent discrimination and harassment on prohibited grounds such as race, ancestry, sex, age, family status and handicap. Such protections apply not only to employees but also to applicants. As such, employers must be careful not to directly or indirectly ask about any of the prohibited grounds in the job application or interview process. The following guidelines will help you avoid human rights pitfalls in the job application process:

  1. In some cases, questions may be problematic if asked before hiring an employee, but may be acceptable if asked afterwards. Questions that could be considered discriminatory before hiring may be asked later if there is a legitimate need for the information, such as asking for a social insurance number. The general rule is to ask only what is needed to make a hiring selection on the basis of merit.
  2. When creating an application form, ask yourself whether the information being sought in each question is necessary to determine the applicant’s competence or qualification for the job. If the answer is no, delete these questions. Also, ask yourself whether the answers to the questions could unfairly screen out particular groups of persons protected by human rights legislation. If the answer is yes, delete the questions.
  3. While you should avoid direct questions relating to national or ethnic origin, you can inquire whether an applicant is eligible to work in Canada. Similarly, you should not ask for the applicant’s social insurance number before you have made an offer of employment since a social insurance number can reveal information about a person’s citizenship status or place of origin. Of course, you may ask for the social insurance number once you have made a conditional offer of employment.
  4. Beware of seemingly innocuous questions such as which primary and secondary schools the applicant attended. Answers to these types of questions could identify religious background or ethnic origin.
  5. Although you should avoid questions relating to age or date of birth, you can ensure that an applicant is 18 years of age or older.
  6. Different provinces treat criminal records differently. In Ontario, for example, you are entitled to obtain information about Criminal Code convictions. In other provinces, such as British Columbia, you may only discriminate on the basis of a Criminal Code conviction if the conviction is related to the job for which the applicant is being considered. Other provinces have no restrictions on the ability to discriminate because of a criminal record.
  7. Where requirements are bona fide occupational requirements (BFORs), such as the ability to work certain days, you may ask questions relating to such requirements during the interview process. In doing so, you may obtain information about prohibited grounds such as religion, creed and family status. If so, you must then determine whether the applicant’s needs can be accommodated without causing undue hardship.
  8. Avoid questions concerning marital and family status, unless you have a legitimate reason for them. Even by asking seemingly innocent questions about these subjects, you can give the applicant the impression that these issues are of real concern to the employer. If, however, you serve a particular group, such as single women, then such questions may be appropriate.
  9. In order to ensure that a job interview process is appropriate and legally compliant, consider:
    1. establishing objective criteria to govern the hiring decision;
    2. interviewing in pairs;
    3. training interviewers;
    4. selecting interviewers who are acquainted with the job requirements;
    5. vetting the interview questions in advance of the interview; and
    6. taking detailed notes of the interview.
  10. Throughout the application or interview process, you may inadvertently obtain information about some of the prohibited grounds. Obtaining such information is not necessarily improper. However, it is improper for you to make your decision about offering employment to an applicant based on a prohibited ground (unless it is a BFOR). If challenged, be prepared to establish the reason why the applicant was not offered the job. In addition, you should be able to demonstrate that the prohibited ground played no part in the decision.