When Asking a Question can be Illegal

When can asking a simple question be illegal? When you are interviewing a prospective employee for a job.
The Ontario Human Rights Code prohibits discrimination in employment on a number of grounds, including age, sex, sexual orientation, creed, race, national origin, disability, family status and marital status.
Although it rarely happens, an employee who you did not hire and who was asked a question that intruded into one of these areas could file a human rights complaint against you personally and your company. If you can show that the reason they didn’t get the job was unrelated to your inappropriate question, the damages will not be huge, but your company is going to pay a lawyer to defend the complaint and a few thousand dollars in general damages may be awarded to teach you a lesson.
Not surprisingly, many interviewers see the process as both a formal and informal meeting. On the one hand you want to learn about the formal qualifications and experience of the employee and on the other you want to get to know a little bit about them. We are human beings and we want to get a sense of the person. Without that, it is said, we cannot use our intuition to decide if they are going to be a good worker and a good fit.  
One of the primary ways we get to know about a person is to ask them personal questions like, “Are you married?” Wrong question. “What does your spouse do?” Another wrong question. “Do you have children?” By now, you’re sunk.
These seemingly innocuous and friendly questions in any other social setting are taboo in an employment interview.
What if the answer is, “Yes, I am married and my spouse is in the military.” (Which means they move to a new place every three or four years.) “Oh, and we have 5 children.”
You asked the questions and got the answers and don’t offer them the job. Discriminating against somebody on the basis of their marital status includes discriminating on the basis of particular characteristics of their spouse including their identity and profession. Discriminating on the basis of family status includes not only their status of having children, but also the particular facts involved including how many.
I was recently queried by the wife of an Air Force officer as to how she should respond to these questions. Every three or four years they are transferred and she looks for work to supplement the family income. It is a given that we do not pay our military personnel particularly well. Everyone asks what her husband does and if she tells them.  They put two and two together and realize this is not going to be a long term employee. She has even been told by potential employers that her qualifications were great and she would have been hired but for the fact that she wouldn’t last more than three or four years. At least you have to give them points for being honest if somewhat misguided.
Like many people, she is honest to a fault and tells them the truth. She doesn’t want to get the job and later be resented by her employer for having misled them.
While I can’t fault her honesty, from another perspective one could argue that these questions do not deserve an honest answer. Since they violate every human rights code in the country and were illegal in the first place, why should anyone feel guilty about any answer they give? At the end of the day, her approach is the right one. Two wrongs don’t make a right and there is not much point in getting a job only to be resented once the truth comes out.
Reexamining this “intuitional” approach to hiring is something all interviewers should do. To the extent that intuition draws on a “feeling” or unreasoned impression, it can also draw on every stereotype and prejudice we hold but don’t acknowledge.
We all have them, every one of us. Whether you call it a stereotype or prejudice, it is a negative judgment based on a generalization. We buy into them  every day. Sometimes it is a generalization that contravenes the Human Rights Code and sometimes it’s not.  Compare these two : (1) Single mothers miss a lot of work, (2)  People who worked for one employer for a long time are reliable workers. Both stereotypes are silly. If you do not hire based on the first one you are breaking the law.  We make these kind of judgments without even thinking about it. Often we call it “intuition.
Intuition is really not what it is chalked up to be. By letting go of the “get to know you” approach, people in a hiring position can feel confident that they are making a decision as free as possible of silly stereotypes, both legal and illegal.
As published in The Hamilton Spectator, January 27, 2007.
Ed Canning
Ed Canning
P: 905.572.5809