Most companies know which are some of the obviously dangerous questions to ask during a job interview. Are you planning to have children (i.e. many expensive parental leaves)? Do you have a happy (i.e. stable) marriage? Are you religious (i.e. a different religion than me)?
What about the less obvious questions? Focusing on any characteristic protected under the Ontario Human Rights Code (“Code”) is inviting trouble. If a job candidate can then establish that they did not get a job even in part because of discrimination, the employer may be facing a claim. The Code is crystal clear that the human rights regime applies throughout the entire employment relationship, from the interview and pre-employment stage, right through to termination.
Prohibited Grounds of Discrimination
The Code sets out a comprehensive list of grounds upon which every person has a right to be free from discrimination with respect to employment in Ontario: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Some of these grounds are defined in the Code (e.g. “record of offences”), but others are generally interpreted through the Tribunal’s decisions. While there are some exceptions carved out for specific types of jobs (e.g. certain personal caregiver roles), most positions must be entirely free from any consideration related to the Code grounds.
Employers need to be mindful of even the seemingly obvious grounds. For example, asking someone about their race or ancestry in a job interview for a front line worker in a factory will nearly always be a bad idea. But asking back door questions to get at this information is also not prudent. For example, asking questions like where the candidate went to high school, what is their native language, when did they come to Canada – each of these questions are a backdoor way of asking about a prohibited ground of discrimination.
For some helpful guidance, the Ontario Human Rights Commission released a policy on “Removing the Canadian experience barrier” last year. They also have a comprehensive section on interview questions in their publication “Human Rights at Work”. The Commission’s publications are not law, but are persuasive at the Tribunal. Both publications provide examples of questions to avoid and ways to gather the information you need regarding the actual duties and skills position, without crossing the line into discriminatory territory.
The key way to avoid trouble: focus on what the specific job duties and skills are. Issues like “fit” or “work ethic”, while practically may be on an interviewer’s mind, are full of subjective judgments and stereotypes, many of which are entirely inaccurate. Not only do you risk not getting the most qualified candidate, but you risk violating the Code and facing a claim of discrimination.