Conducting interviews with job applicants is an essential part of the hiring process and building a business. Interviews are used determine whether a candidate is right for the position, as hiring the wrong person can be costly. While sunk costs from investing in the wrong candidate can be costly, conducting an unlawful interview can also hurt the organization’s bottom line.
Employers should be careful not to ask discriminatory questions during the interview, as they may be liable for human rights damages, even if the job applicant never becomes an employee. While employers should ensure that the entire hiring process is non-discriminatory, the interview process in particular is often a time when off-the-cuff comments are made, or seemingly innocent questions are asked.
This article explains the risks involved in asking unlawful questions, as well as practical ways to avoid appearing discriminatory during an interview process.
Risks Related to Conducting Unlawful Interviews
The Ontario Human Rights Code and Canadian Human Rights Act cover the interview and hiring process under section 23 and section 8, respectively. This means conduct that takes place during an interview can be captured as a human rights violation under legislation.
Although the employer may be trying to get to know the candidate better, making comments or asking questions related to a protected human rights ground runs the risk of being discriminatory. Even if the employer does not hire the individual because another candidate had more skills and experience, the non-hired candidate may believe that such area of questioning was the reason they were not hired.
In Kartuzova v HMA Pharmacy Ltd, 2012 HRTO 328, the employer asked questions about the candidate’s family, marital status, and how she came to Canada. While the applicant had been informed that she would be hired earlier in the interview, after she answered the personal questions, the interview ended abruptly and she was not offered a position. The Human Rights Tribunal of Ontario found discrimination and held the lack of intention to offend of discriminate was not a consideration.
In Browning v Northend Body Shop Ltd, 2017 HRTO 1001, the employer, an auto-body shop, asked the co-op student whether “she really wanted to get her hands dirty because his shop was dirty”, and instead offered her filing and telephone tasks. Such comments were held to be discriminatory on the basis of sex.
A human rights application or complaint can result in the employer paying significant damages, in addition to the costs required to defend these. As such, employers should take every precaution available to avoid even appearing to discriminate against a candidate during the interview process.
Conducting a Lawful Interview
It is best to standardize questions and have them reviewed prior to conducting any interview. This will help prevent any discriminatory or inappropriate line of questioning, and avoid any claim of an unfair or discriminatory hiring process. Minimizing any off-the-cuff questions will reduce the risk of asking questions related to a protected human rights ground.
On the other hand, employers may focus interview questions relating to the essential duties or any bona fide occupational requirements, as these are necessary to perform within the position.
In some cases, a job applicant may volunteer irrelevant information related to protected human rights grounds. When this happens, it is best not to pursue the line of questioning or make note of it.
Accommodating Job Applicants
In addition to ensuring interview questions are non-discriminatory, employers have a duty to accommodate candidates human rights needs up to the point of undue hardship. To be proactive, an employer may ask candidates to let them know in advance of the interview whether they require any accommodation. A failure to accommodate during the hiring process can also lead to human rights damages.
Contact Us for Help
If you are an employer and want to ensure you are complying with human rights legislation, or a job seeker who believes you have experienced discrimination, our team of experienced legal professionals at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at email@example.com and we would be happy to assist.
If you are a small or medium-sized company looking for full-service support, visit our CLO program page for our strategic solutions.
Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call 1-(800)771-7882, or email firstname.lastname@example.org.
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