Conducting job interviews is a crucial step in the hiring process, but it’s also one where employers must tread carefully. In Canada, there are specific laws and regulations that protect candidates from discriminatory practices during the interview process. Asking certain questions can not only be seen as unprofessional but may also expose your company to legal risks.
This blog post will outline the types of questions you should avoid during interviews to ensure that your hiring practices comply with Canadian law. For an update on new job posting rules, see our earlier post.
Understanding Canadian Human Rights Legislation
In Canada, hiring practices are governed by various employment laws, including the Canadian Human Rights Act at the federal level and provincial/territorial human rights codes. These laws provide that an employer cannot refuse to employ or discriminate against a person with respect to employment on the basis of protected grounds.
There is some variation in the prohibited grounds specified in each jurisdiction, but generally they include:
- Race
- National or ethnic origin
- Colour
- Religion
- Age
- Sex (including pregnancy and childbirth)
- Sexual orientation
- Gender identity or expression
- Marital status
- Family status
- Disability
The specific list of prohibited grounds varies by jurisdiction. Some jurisdictions include pardoned criminal convictions, or criminal convictions that are unrelated to the employment of the person. Some jurisdictions include political opinions, source of income, genetic characteristics or an irrational fear of contracting an illness or disease. It’s important to know the specific list of prohibited grounds that apply to the jurisdiction in which you are hiring.
In addition to the general protection from discrimination, most jurisdictions include specific prohibitions regarding job interviews. For example, in most jurisdictions you cannot use a form of application, publish an advertisement for a job, or make inquiries (including in a job interview) that express a limitation, specification or preference or invite information that is based on the prohibited grounds. Even where there is no specific provision regarding interviews, asking questions based on a prohibited ground may still be discriminatory.
Generally, the exception to this is where there is a legitimate requirement based on the nature of the job. So, if the job requires a person to obtain a certification that has an age requirement, it would fall within he exception to ask questions that confirm the person meets the age requirement.
It’s essential to frame your interview questions in a way that avoids any implication of discrimination based on these protected characteristics. That means thinking about the interview process right from the outset and in the context of the specific job requirements.
Job Interviews that Comply with Human Rights Laws
1. The Job Description and Job Requirements
Make sure you clearly understand the job requirements. Job requirements should be based on the qualifications, skills and abilities required to perform the work. Think through the requirements for the specific job and consider whether any of those requirements are connected to a prohibited ground. If they are, then you need to consider whether the requirement is a legitimate (or bone fide) requirement.
If you cannot connect the requirement that is based on a prohibited ground to a bone fide requirement for the job, then you need to remove that requirement. If there is a bone fide requirement, then you want to ensure that you have clearly documented the reason for the requirement.
2. Preparing for the Job Interview
You’ve now posted for the position and have selected candidates to interview. It is important that your interview questions align with the job requirements. Develop a standardized set of questions that are asked of all candidates to help ensure fairness and consistency in the interview process. This approach minimizes the risk of inadvertently asking inappropriate questions.
The best way to avoid asking inappropriate questions is to focus on the skills, qualifications, and experience needed for the job – which you have already clearly defined in the first step. Ask about a candidate’s past work experience, their problem-solving abilities, and how they would handle specific challenges relevant to the position.
A decision of the Ontario Human Rights Tribunal highlights the importance of this step. The Ontario Human Rights Tribunal found that an employer discriminated against a female worker applying for a promotion by tailoring the job interview process to emphasize a male candidate’s skills, even though the female worker’s skills more closely aligned with the qualifications in the job posting.
The HR manager who developed the interview questions did not compare the interview questions to the qualifications listed in the job posting. This was one factor in the court finding in favour of the complainant. The Tribunal found that “[g]iven the number of technical requirements in the job posting, I am persuaded that this deviation from the [employer’s] usual practice, was biased against candidates who may have had more technical expertise usually associated with the office work done by females…”. The fact that the interview questions were not connected to the qualifications in the job posting suggested that the questions were intended to benefit a specific, male, candidate.
Once you have ensured that the questions are connected to the job qualifications, review the list of questions carefully to make sure they do not ask for or invite the candidate to provide information based on a prohibited ground.
To do this, you not only need to think about the questions themselves, but the answers that they are likely to elicit. A question that does not make reference to a prohibited ground may still be one that is likely to invite a candidate to provide information based on a prohibited ground.
If the position does have a bone fide job requirement based on a prohibited ground, you will want to think about how you ask questions related to the prohibited ground. Limit your questions to ones that will only get at the information that you need. For example, if you are hiring for a position that requires the person operate a forklift, there may be a minimum age requirement of 18. Rather than asking the employee’s age, you can ask if they are at least 18 years of age, or if they meet the age requirement to operate a forklift. You don’t need to know their exact age to meet the requirement.
Here are some other examples to consider:
Questions About Marital or Family Status
- Example: “Are you married?” or “Do you have kids?” These questions are irrelevant to a candidate’s ability to perform the job and can lead to discrimination based on marital or family status. Avoid asking anything related to the candidate’s personal life or future family plans.
Questions About Religion
- Example: “What religion do you practice?” or “Do you observe any religious holidays?” Religion is a protected ground under human rights law. You cannot ask about a candidate’s religious beliefs or practices. If your concern is about availability, you can ask more general questions like, “Are you available to work the required schedule?”
Questions About Nationality, Ethnic Origin, or Citizenship
- Example: “Where were you born?” or “What is your nationality?” You can ask whether a candidate is legally eligible to work in Canada, but avoid questions about their place of birth, citizenship, or ethnic background. For instance, instead of asking, “Are you a Canadian citizen?” you can ask, “Are you legally authorized to work in Canada?” Note – pending amendments to the Employment Standards Act, 2000 in Ontario will prohibit employers from including a Canadian experience requirement in job postings.
Questions About Gender and Sexual Orientation
- Example: “Are you male or female?” or “What is your sexual orientation? Gender and sexual orientation are generally irrelevant to a candidate’s qualifications. Any questions related to these topics can be viewed as discriminatory. It is very rare that gender will be a bone fide requirement.
Questions About Disabilities or Health Issues
- Example: “Do you have any disabilities?” or “Have you ever been on disability leave?” You cannot ask about a candidate’s physical or mental health. If the job has specific physical requirements, you can ask if the candidate is able to perform the essential duties of the job, with or without accommodations.
Questions About Criminal Record
- Example: “Have you ever been arrested?” or “Do you have a criminal record?” In many jurisdictions in Canada, it’s illegal to discriminate against someone based on a pardoned criminal conviction. You may be able to ask about criminal records only if it’s directly related to the job (e.g., working with vulnerable populations), but even then, tread carefully.
3. Train Interviewers to Properly Conduct Job Interviews
Ensure that everyone involved in the hiring process understands what questions are off-limits when conducting a job interview. Provide training on human rights laws and best practices for conducting interviews. Review these requirements periodically.
4. Making Small Talk
Be mindful of small talk. When interviewing, it can be easy to begin making small talk with a candidate, either to help put them at ease, to kill time while waiting for others to join, or just because it feels like the natural way to begin a conversation. In some hiring situations, you may have a formal interview process followed by meet-and-greets or taking the candidate for dinner. It is easy in these situations for conversation to veer toward prohibited topics. Remember that all of these interactions may be considered part of the job interview.
Key Takeaway – Job Interviews
Job interviews must be conducted in accordance with human rights laws in Canada. Understanding and adhering to Canadian human rights laws during the hiring process is crucial for creating a fair and inclusive workplace. By avoiding questions that touch on personal characteristics protected under the law, you not only protect your company from potential legal issues but also foster a more respectful and equitable hiring environment.
Remember, the goal of an interview is to assess a candidate’s ability to perform the job, not to delve into their personal life. Keeping your questions focused and relevant will help you make the best hiring decisions while staying compliant with Canadian human rights legislation.
How Compliance Works Helps You Prepare for Job Interviews
The specific prohibited grounds vary from one jurisdiction to the next, as do the scope of exemptions that permit certain questions in a job interview. Researching the legislation in each jurisdiction to understand these differences can be very time consuming – and in some cases the language used may be unclear. Compliance Works makes it easy for you to understand the scope of your obligations. Our plain language summaries help you quickly hone in on your obligations and we notify you as soon as there are changes to the law, so you will never be caught off guard.
Contact us to Request a Demo or email us at info@complianceworks.ca to learn how a subscription to Compliance Works can help your HR team succeed.
