Advertisements should not directly or indirectly differentiate on the basis of a protected ground. Requiring “Canadian experience” or indicating a preference for childless applicants leaves employers vulnerable to allegations of discrimination. Instead, advertisements 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 clearly in English. It runs afoul of the Code, however, to advertise for someone who speaks English “without an accent.”
Application forms and interviews
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. What many employers don’t realize is that a social insurance number may be used to access other personal information, including a candidate’s age and date of arrival in Canada. Requiring candidates to provide details about the years they attended school or the name of the school itself could reveal the candidate’s age, religious affiliation and place of origin. Similarly, asking for a photograph of the candidate may reveal race or ethnic origin.
Information requested on job applications should be limited to what the employer needs in order to makes his or her initial assessment of the candidate. The type of information that should be collected at this stage varies according to the position the employer seeks to fill. It is a bona fide inquiry, for example, to ask candidates applying for a position that requires driving a vehicle on or off apartment premises whether they have a valid driver’s license. Asking the same question of candidate for a concierge position, however, serves no reasonable purpose.
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.
Criminal record checks
Because employees often perform all or a significant part of their work on apartment premises and interact with residents and their families on a day-to-day basis, an employer may decide to make an offer of employment conditional upon a clear criminal record check. While this may be a prudent practice, it is important to note that the Code prohibits discrimination in employment because of a “record of offences.” The provisions of the Code suggest that an applicant, or an existing employee for that matter, may be subject to discrimination in employment (i.e. refused employment or fired) if he or she has been convicted of an offence under the Criminal Code and has not been granted a pardon. However, an employer will violate the Code if her or she refuses to hire a candidate because he or she has a criminal conviction which 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 is concerned, the Ontario Human Rights Commission takes the position that 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 board may expand on this question, provided that this is necessary to determine the candidate’s ability to perform the essential duties in question. For example, it may be permissible to make inquiries to determine if an applicant is bondable, provided that this is a reasonable qualification of the job, or to determine if the applicant has a record of convictions under the Highway Traffic Act, if driving is an essential job duty.
Above all, and throughout the entire hiring process, employers should gather only as much information as they need to find the right candidate for the job. Of course, if candidates volunteer extra personal information during an interview or on a resumé, the interviewer is free to discuss it with them. Even so, if the interviewer uses this as an opportunity to delve too deeply into a candidate’s background, it will run the risk of a human rights complaint from unsuccessful and disgruntled candidates.
With the foregoing in mind, employers are well-advised to audit their hiring practices to ensure compliance with the underlying principles of human rights legislation. Managers looking to conduct a privacy audit may wish to have counsel review their employment advertisements, job application forms and interview questions to ensure that they do not contain requests for unnecessary and potentially problematic information.
Denise Lash and Rhonda Shirreff are condominium experts in the Condominium Law Group at Heenan Blaikie and contribute to a blog at www.condoreporter.com.