Of course, human rights legislation prevents employers from making hiring decisions based on race, ethnicity, colour, religion or disability, amongst other prohibited grounds. Interview questions may, however, touch upon issues related to personal details, and although they may be asked in good faith, care should be taken to avoid an interviewee from concluding that unlawful discrimination played any role in the outcome of their interview.
In Ontario, prospective employees can be asked to determine whether a candidate can perform the essential duties of the job to be filled, and if not, to determine what if any accommodations would need to be made to permit the prospective employee to perform those duties. For instance, it would be acceptable to ask if the candidate is legally entitled to work in Canada but not appropriate to check if a candidate is a Canadian citizen.
The correct enquiry, therefore, in deciding whether a job applicant has faced discrimination, is not merely whether a question that could be viewed as discriminatory was asked but also whether the question had a rational connection to the qualification of the job being applied for.
Sometimes, questions based on personal characteristics have no relevance to the position being interviewed for. If a candidate is suspicious about a question, the best approach would be to request an explanation of the reason that particular information is being sought to allow the candidate to understand how it may be connected to their ability to perform the job. On their part, employers would be well-advised to ensure that interview questions are carefully prepared in advance, and that any questions asked during the hiring process be tailored to the position they seek to fill, to minimize the prospect of a discrimination complaint being made.
If a candidate believes he or she was discriminated against in a hiring process, he/she can make a complaint to the Human Rights Tribunal, which will conduct a limited investigation to determine whether the complaint can proceed. The Tribunal may then facilitate a resolution through mediation, which, if unsuccessful may then lead to a hearing being held where an adjudicator can award damages or other remedies if discrimination is proven.
For some helpful guidance, the Ontario Human Rights Commission has an extensive online library of policies and guides which can assist you in determining whether an application to the Tribunal may be appropriate.
Have you, a family member or a friend experienced problems in the workplace, from initial interview, through termination of your employment? If so, contact our employment lawyers today. The employment law team at Mackesy Smye is experienced in handling such cases and can help you defend your rights and ensure your fair trial at court.