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HUMAN RIGHTS IN EFFECT AT POINT OF HIRING

The Ontario Human Rights Code’s prohibition against discrimination in the workplace begins at the point of hiring. Employers need to be very careful about the questions they ask and the comments they make in the hiring and interview process. “innocent” small talk can sink you.
 
The Code prohibits discrimination in the workplace based on race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status and handicap.
 
That sounds easier than it actually is.
 
Although the job you are advertising may involve an incredible amount of cross-country travel, expressing a preference for a single or mobile applicants will constitute discrimination on the basis on marital or family status. Indicating that a candidate should have “Canadian experience” will be discrimination on the basis of one’s place of origin or citizenship.
 
While you can stipulate that an applicant must speak clear and intelligible English, if you advertise for “un-accented English”, you are in trouble. In the old days, application forms often asked for personal appearance details such as colour of eyes, hair, skin, height, weight, etc. If you need this information for security purposes, you can gather it after you hire the applicant. It should never be requested on an application form.
 
Don’t ask about a person’s mother tongue or where their language skills were obtained. Fluency in English or French should only be required if it’s actually needed for the job.
 
Asking whether there are days of the week that somebody is not prepared to work for religious reasons is a definite no-no.
 
While you can ask an applicant if they are legally entitled to work in Canada, you should avoid any question that relates to a person’s citizenship, place of origin or ethnic origin. You can only ask for a person’s Social Insurance number after an offer of employment has been made.
 
If you look at the website for the Ontario Human Rights Commission, it indicates that you cannot even ask questions about the name and location of schools attended by an applicant. The answers may indicate the place of origin. It must be remembered that the website simply reflects the opinions of the bureaucrats who administer the Code. It is not the law. I think they are wrong on this one.
 
While it might be fair to say that if the only educational requirement for a job is a high school level diploma, asking for the name and location of the school may not be necessary, there are many jobs for which educational achievements are extremely relevant. Some schools are simply better than others and their graduates are preferred employees. An employer looking for an engineer has every right to grade applicants on the basis of what engineering school they attended. The admission standards for some schools are far higher than others. The Commission’s blanket prohibition against asking about the name and location of schools attended would not likely be supported by the courts.
 
Application forms should never ask if someone is a Mr., Mrs., Miss or Ms.  Maiden names should never be requested. Asking the relationship with the person to be contacted in cases of emergencies or the person who will be the insurance beneficiary is not acceptable. This information is usually only requested after the hiring has taken place but it is unnecessary and should never be requested at all. Employers have to be careful here because it is usually not their form that is being filled out but some form provided by the insurance company.
 
An employer can ask whether an applicant has been convicted of a criminal offence for which a pardon has not been granted. It cannot ask about other offences. If you are hiring somebody who needs to have a valid driver’s licence and a clean driving record, you can ask about the valid driver’s licence up front but you shouldn’t ask about the driving record until you’ve made an offer of employment conditional upon a clean driving record. If you go to the Commission’s website, they indicate that you can’t ask any questions in this regard, but once again, their opinion is not the law. Hiring a truck driver with an awful driving record can involve prohibitive insurance costs. At the end of the day, I don’t believe any judge is going to say that it’s the employer’s job to pay whatever it takes to insure that driver.
 
A birth date should never be requested on an application form. You can simply ask if the person is over 18 and under 65.
 
All questions relating to a person’s potential disabilities or history of workplace injuries or illnesses are prohibited. 
 
Although the hiring and interview process may initially seem like a bit of a mine field, when you think it through, it’s really not that complex. The Code appropriately encourages employers to treat all employees with dignity and respect and without discrimination on the basis of the prohibited grounds listed at the beginning of this article. That’s a good thing and I believe most employers agree with it. The tricky part comes when interviewers inadvertently ask questions as part of the small talk that strays from what the employer really needs to know about the applicant. The employer may have thought nothing of the conversation and hired someone else for completely legitimate reasons but a few months later a human rights complaint arrives in the mail.
 
No matter how sure you are that people always like you and appreciate your personable nature, beware the small talk, it can get you in big trouble.
 
 
As published in the Hamilton Spectator, August 6, 2005
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com