Employers are aware that there are several human rights issues that must be considered and accommodated with respect to their employees. Failure to ensure that employees have a safe and hospitable working environment with respect to issues such as disability, advanced age or religious beliefs, for example, may justify a valid human rights complaint requiring remedial action from the Human Rights Tribunal of Ontario. However, employers may not be aware that they have an equal responsibility to respect the rights of prospective employees when interviewing and considering candidates for roles within the company. Below, we will provide an overview of the human rights of job applicants that employers must protect during the interview and hiring process, and conversely, the accommodations and rights that potential employees should expect when interviewing for a position with a new employer.
Protected Grounds Under the Ontario Human Rights Code
First, it’s helpful to review the various grounds that the Ontario Human Rights Code (the “Code”) is designed to protect. Under the Code, it is illegal for an employer (or potential employer) to discriminate against any person on the following grounds:
- Gender expression or gender identity
- Family or marital status
- Race and related grounds
- Receipt of public assistance
- Record of offences
- Sex (including pregnancy)
- Sexual orientation
Ensure a Fair Hiring Process
The Ontario Human Rights Commission provides guidelines for employers to ensure that the hiring process is as fair as possible for all applicants:
- First and foremost, ensure that the process is consistent across the board for all employees, and be as objective as possible in the assessment of each candidate.
- In-person interviews should be conducted with a panel of interviewers in an effort to account for individual biases, and the panel should ideally be comprised of diverse representatives of the company.
- The same questions should be posed to each candidate. Employers should have a set of ‘ideal’ answers created in advance so that each applicant’s responses can be gauged in comparison.
- If tests form part of the hiring process, ensure that the test is administered in the same way for each candidate. Further, all tests should be scored based on the same objective criteria.
Provide Necessary Accommodations for all Interviews
All employers are required to provide accommodations for any of the enumerated grounds listed above for any job applicant who requests them. The principles of accommodation are the same whether dealing with existing or potential employees. As described by the Ontario Human Rights Commission:
The most appropriate accommodation must be identified and implemented short of undue hardship. … An accommodation will be considered appropriate if it will result in equal opportunity to attain the same level of performance or to enjoy the same level of benefits and privileges experienced by others, or if it is proposed or adopted to achieve opportunity and meets the individual’s needs related to the relevant Code ground.
A candidate in need of accommodation is responsible for making a potential employer aware of their requirements and providing sufficient detail so that appropriate accommodation can be made.
Ensure Interview Questions Are in Compliance with the Code
Employers should be careful to make certain that interview questions are designed to obtain information specifically related to a candidate’s qualifications and factors needed to make an appropriate hiring decision. Employers are prohibited from asking questions relating to the grounds enumerated in the Code, with limited exceptions, including:
- An employer may ask questions related to Code grounds to assess the applicant’s eligibility for a special program under section 14 of the Code. If the program is designed for people to whom certain enumerated grounds apply, it is okay to ask about them, as long as employers are clear with applicants about the reasons for asking.
- Certain exemptions are allowed under s. 24 of the Code if requirements of the job necessitate hiring based on one or more enumerated ground. Compliance demands that the requirement is reasonable and bona fide based on the nature of the job.
- Employers can expand the scope of questions asked if necessary, to determine the applicant’s ability to perform the duties of the job. For example, it is permissible to mention that a job requires heavy lifting in order to determine if the applicant would be capable of performing such a task. If an applicant raises the question of a potential accommodation on the job, it is permissible to discuss it. If not, discussions about accommodations must wait until a conditional offer of employment has been made.
Make Non-Discriminatory Hiring Decisions
Employers should ensure that only job-specific information is considered when making hiring decisions. If an applicant volunteered information about one of the enumerated grounds during the interview process, that information should not be considered unless one of the above exceptions applies.
An employer should be able to cite a non-discriminatory reason for each unsuccessful candidate. Avoid providing vague reasons to unsuccessful interviewees, as the candidate may interpret potential discrimination as the basis for the decision. For example, saying a candidate was not a ‘good fit’ for the company could be interpreted as being related to a candidate’s race, disability or religion. A candidate told they ‘lack long-term career potential’ or are ‘overqualified’ for a role may view the actual reason to be ageism.
As a best practice, employers should retain records from the interview process for at least six months if no complaint about the process is made, and if a human rights claim is made, records should be retained until the claim is resolved in court or before the Human Rights Tribunal.
At Baker & Company, we take the time to meet with you and understand your unique needs in order to offer solutions to the diverse problems you may encounter in the workplace. The highly skilled Toronto employment lawyers at Baker & Company can review your employment policies and ensure that you are meeting your legal obligations while addressing and mitigating risk. Protect yourself, your workplace, and your employees. We rely on our broad base of experience and expertise to provide clear, pragmatic legal advice, and representation in litigation. Call us at 416-777-0100 or contact us online for a consultation.