Posting job advertisements and interviewing candidates are essential parts of any employment hiring process – but ones that can also give rise to legal liability. This is because Ontario law prohibits employers from discriminating against candidates during the hiring process, which includes both the job advertising process and interviews. Employers may be held liable for damages on human rights grounds even in cases where job applicants are never ultimately hired on as employees.

Avoiding Discriminatory Language in Job Advertisements

An example of a problematic job advertisement was that of a recruitment company, Delta Staffing Services, in 2017. The posting in question implied that men and women would be compensated differently for the job, which is a violation of the principle of pay equity. It also explicitly stated that the recruiter was seeking candidates from “Asian and European cultures”, raising concerns about the principle of equal opportunity.

This example is a particularly extreme one but illustrates an important point. Language in job advertisements that implicitly or explicitly highlights or excludes a specific gender, age, religion, race or ethnic background, sexual orientation, or gender identity is likely to run afoul of Ontario’s Human Rights Code. Employers can be found to have violated the Code even where there was no bad faith in their intentions.

Accommodating Candidates During the Hiring Process

Employers also mitigate their risk by ensuring they ask potential candidates about any need for accommodation they may have before the interview process. Under the law, employers must accommodate the candidate to the point of undue hardship. For example, the location of the interview must be easily accessible to someone with a disability that affects their mobility.

Improper Interview Questions Can Lead to Human Rights Violations

Ontario’s Human Rights Code and the Canadian Human Rights Act also apply to the job interview process. Employers must ensure this process does not run afoul of these laws by discriminating against an applicant on prohibited grounds. One best practice is to develop a list of approved, standardized questions to use in all interviews, which can reduce the risk of an interviewer wandering into a problematic line of questioning. Focusing questions on objective qualifications or credentials is a good idea.  

As a general rule, interviewers should avoid discussion of topics such as religion, race or ethnic origin, sexual orientation or gender identification, citizenship, age (other than establishing a candidate is not a minor), or marital or family status. Other inappropriate lines of questioning might involve whether someone has or plans to have children, whether they have ever been arrested, whether they like to drink or party, or any political affiliations. Where the candidate raises these topics unprompted, the employer should avoid pursuing these lines of questioning and redirect the interview back to appropriate topics.

Examples of Discriminatory Interview Questions

In one prominent human rights case, Kartuzova v. HMA Pharmacy Ltd., an interviewer questioned the job candidate about her family, marital status, and how she came to Canada. The candidate testified that early on in the interview, she had been told by the interviewer that she would be hired, but then after being asked personal questions, the tenor of the interview changed and ended abruptly. She was not offered the position, leading her to conclude that it was her answers to these questions which had cost her the job. The Ontario Human Rights Tribunal found that the questions constituted discrimination and ordered the employer to pay $4,500 in damages to the candidate.

In Browning v. Northend Body Shop Ltd., an owner of an auto body shop asked a female co-op student inappropriate questions during the interview process, such as inquiring whether she “really wanted to get her hands dirty.” Upon her hiring, she was assigned to clerical tasks even though the position was for auto bodywork. The Human Rights Tribunal found that the employer had discriminated against the student on the basis of her sex and awarded the student $7,000 in damages.

Mistakes Can Be Costly

It is natural for both employers and employees alike to want a relaxed and informal interview process. However, employers must ensure that friendly conversation used to ease a nervous candidate does not end up in problematic territory. Even if a candidate does not end up being hired, they may have cause to believe their rejection was due to problematic questioning during the interview process. The resulting human rights complaint process can leave the employer liable for significant fines, legal fees, and reputational damage. Therefore, it can pay dividends to prevent getting into such a mess in the first place.

Contact Tierney Stauffer LLP in Ottawa, North Bay, and Eastern Ontario for Advice on Employment Matters

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