A job interview is meant to assess a candidate’s qualifications, not their personal life. Yet, on April 29, a post on Reddit went viral after a candidate shared that that a company asked her questions related to starting a family during a job interview. The post stated that the company had asked her if she was planning to start a family within the next few years, as the company wanted to know her family planning situation for team planning purposes. The candidate ultimately declined to answer the question, citing legal and ethical concerns.
Are employers allowed to ask about family planning?
Employers must ensure that their questions are in compliance with the applicable human rights legislation. When inappropriate questions relating to human rights grounds are asked in an interview, an inference may be made that a decision not to hire was influenced by such questions. The fact that improper questions have been asked is sufficient to prove discrimination, even if the applicant is ultimately given the job.
In Ontario, the Ontario Human Rights Code (the “Code”) provides protection for employees who are asked inappropriate questions related to Code grounds. These grounds include asking questions relating to age, race, sex (including pregnancy), disability, family status, citizenship, place of origin, gender, sexual orientation, etc. Section 23(2) of the Code specifically prohibits employers from asking questions that directly or indirectly classify or indicate qualifications by a prohibited ground of discrimination. If an employer asks questions that can be directly or indirectly linked to a prohibited ground under the Code, it is likely that an employee could submit an application for discrimination at the Human Rights Tribunal, even if they are ultimately given the job.
Which topics are off-limits in interviews?
However, Section 23(3) of the Ontario Human Rights Code permits an employer to ask questions about a prohibited ground of discrimination, in certain circumstances, specifically when the Code permits an exception. These exceptions apply to certain situations, such as roles within special service organizations, designated programs, or jobs that require specific characteristics related to Code-protected grounds. This means that an employer can ask questions about prohibited areas of discrimination, provided that the questions relate to exceptions and defences that are provided for under the Code. For example, if an employer is running a special hiring program aimed at individuals who are deaf or have hearing disabilities, they are allowed to ask applicants questions related to those characteristics in order to determine eligibility. In these specific and legally recognized cases, asking about a typically prohibited ground is permitted—so long as the employer clearly qualifies for the exemption under Section 23(3).
Notwithstanding the exceptions listed above, applicants must be cognizant of any questions relating to potential human rights grounds that are brought to their attention at interviews. It is possible that an employee may be able to prove discrimination if any questions related to potential human rights grounds are brought up.
How can Whitten & Lublin help?
If you have been asked an inappropriate question relating to human rights during a job interview, you may have a claim for discrimination under the Human Rights Code. Contact us for further information regarding your entitlements online or by phone at (416) 640-2667.
Author – Abby Leung
