A general guide to the prohibited grounds of discrimination based on a review of Canadian human rights legislation and on the types of questions that commonly arise in the hiring process
This article is intended as a general guide to the prohibited grounds of discrimination based on a review of Canadian human rights legislation and on the types of questions that commonly arise in the hiring process. Employers are encouraged to consult the legislation governing their enterprises and any hiring guidelines published by the applicable human rights commission.
Equal opportunity of employment under human rights legislation
Canadian private sector employers are governed by the human rights legislation in place in the province of the employer or, in the case of federally regulated industries such as telephone companies and airlines, the Canadian Human Rights Act. The effect of each Canadian human right statute is to entitle all individuals to equal employment opportunities without regard to prohibited grounds. Under Canadian human rights statutes, the following general categories are variably described as prohibited grounds of discrimination:
•place of origin;
•national or ethnic origin;
•sexual orientation; and
In most cases these characteristics will not be material to the performance of a job and therefore should play no part in selection of an applicant for a position.
There are also some less obvious categories of information which are classified under certain legislation as prohibited grounds including record of offences, source of income, language ability, educational institutions, military service and political belief, although each one of these categories is not prohibited under every human rights act in force in Canada.
As a general proposition, it is discriminatory to post any advertisement, use any application form or make any written or oral inquiry that expresses or implies any limitation, specification or preference based on a prohibited ground of discrimination.
A job advertisement should clearly state the job’s parameters and should not be worded in a manner likely to discourage qualified applicants of a particular status based on a prohibited ground. A posting requiring “Canadian experience” might discourage applicants with relevant experience obtained abroad as a result of ethnic origin or non-Canadian citizenship. Further, while it is acceptable for a job posting to specify competence in the language of the job, an advertisement seeking “unaccented English” may discourage otherwise qualified applicants. A job application form should not contain any question that is unrelated to the job and should not solicit information on prohibited grounds under human rights legislation.
Questions taking into account ¬prohibited grounds of discrimination
Questions designed to ascertain an applicant’s age will generally be discriminatory. It is appropriate to inquire whether an applicant is legally entitled to work in Canada, although in some circumstances it may be necessary to ask whether the individual has reached a certain age.
If hiring a bartender, an employer will need to ensure the candidate is of legal drinking age. It used to be permissible to ask whether an applicant was between the ages of 18 to 65, but this may no longer be appropriate in Ontario as the Human Rights Code now prohibits policies requiring mandatory retirement upon reaching the age of 65.
There are generally no permissible questions relating to a person’s sex. Employers should not ask about a person’s gender on an application form or for a preferred title such as Mr., Mrs. or Miss. Some of the prohibitions relating to sex also relate to marital and family status. It is impermissible to ask whether an individual is single, married or divorced or for a maiden name. Similarly, any inquiry about an applicant’s spouse, dependants (including pregnancy or childcare arrangements) is prohibited.
However, it is permissible to ask an individual whether he is able to travel or transfer for the job or whether he is available for shift work. In addition, any questions that would tend to reveal an individual’s sexual orientation are prohibited under human rights legislation.
The following group of characteristics will generally have no bearing on an individual’s ability to perform a job: race, colour, ancestry, place of origin, creed, religion, citizenship and ethnic origin. While most of these categories are set out in the legislation as separate prohibited grounds of discrimination, questioning related to one ground may give rise to discrimination based on another ground. For example, a question that elicits information as to ethnic origin may lead to disclosure of information relating to race or religion.
An employer will generally be restricted to questions such as whether the individual is legally entitled to work in Canada arising out of landed immigrant status or citizenship.
Questions seeking to determine an individual’s birth place, whether he was born in Canada, nationality of ancestors and racial origin are prohibited. Similarly, a request for a photograph is impermissible as are questions on a form asking for a description of physical characteristics which could indicate race such as eye, hair or skin colour/complexion.
It is not permissible for an employer to ask about a candidate’s religious affiliation, whether the individual will be available to work on a certain religious holiday, questions about religious customs observed or what religious institution they attend. Nor is it permissible to request references from a candidate’s religious leader or other character references that would indicate religious affiliation. However, an employer is entitled to explain the shifts or hours of work demanded by the employment and ask the candidate whether these hours pose a problem.
Handicap or disability is also a prohibited ground but, for practical reasons, an employer may have to be more probing in this area. Generally, an employer may ask if an applicant has any physical or mental condition that could affect his ability to perform the job functions.
An employer may not ask for a list of all disabilities, limitations or health problems, treatment, hospitalization, psychiatric care, previous workplace injuries or workers’ compensation claims. If an applicant discloses a disability, the employer should ask how it affects their ability to perform any of the job functions and what type of accommodation might be required. Disability is broadly defined and includes drug and alcohol dependency.
Generally, pre-employment drug testing and medical examinations are prohibited as they may disclose a disability which is unrelated to job performance, although in Quebec and Alberta an employer may require a job-related medical examination after a conditional offer of employment is made.
Exceptions allowing for questions based on prohibited grounds
Discriminatory questions may be permissible where the information relates to an applicant’s suitability for employment in the context of special programs designed to improve opportunities for groups that have traditionally been disadvantaged because of race, ethnic origin, sex or other prohibited grounds of discrimination These programs are often known as “affirmative action” plans. Pre-employment inquiries with respect to a protected characteristic will generally not contravene human rights legislation where the information is required for the purposes of a special program.
There is also an exception made for the bona fide occupational requirements of an employer, meaning that if a person’s disability, gender or other protected characteristic prevents him from performing a job’s essential duties, then it is not discriminatory to refuse to employ that person. In order to show a job requirement is a bona fide occupational requirement, an employer must show the purpose behind the requirement is rationally connected to the performance of the job, that the requirement is adopted in an honest and good faith belief that it is necessary to the job and that it is impossible to accommodate an individual employee with the characteristic of the applicant without causing undue hardship to the employer. Undue hardship will generally arise where it is financially prohibitive to accommodate an individual or where accommodation jeopardizes health and safety in the workplace.
As a result of the human rights provisions in place across Canada to protect employees from discrimination both during and following the hiring process, it is prudent that employment inquiries at any stage be limited to those that are job-related and necessary.
Helen Gray is a member of the litigation group at McCarthy Tétrault in Ottawa. She can be reached at (613) 238-2108 or [email protected].
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