Author: Daniel A. Lublin
Prejudice in employment interviews is real. But seldom does it equate to discrimination.
Too many operate under the delusion that no interview question can be asked relating to personal characteristics or circumstances. However, Canadian employers are permitted to ask tough personal questions. While human rights legislation prohibits employers from making decisions based on permanent personal features such as race, place of origin, colour, religion or disability, among others, it does not prevent them from asking questions based on these grounds. Therefore, while interview questions may be aimed at exposing personal details, this does not automatically lead to the conclusion that discrimination influenced the hiring decision.
Under human rights laws, employers are allowed to solicit information to determine whether an applicant can perform the essential conditions of the job. It would not be, for example, appropriate for an interviewer to ask whether a candidate is a Canadian citizen. It would be, however, acceptable to ask if the candidate is legally entitled to work in Canada. Similarly, it is acceptable to require a receptionist to speak fluently in English.
The correct enquiry, therefore, in deciding whether a job applicant has faced discrimination, is not whether a potentially prejudicial question was asked but whether the question had a rational connection to the performance of a genuine requirement of the job being applied for. If so, the fact that an applicant did not receive the position she applied for, should not, by itself, mean that discrimination was the reason.
I recommend that both employees and employers consider the following:
- In most cases, questions based on personal characteristics have no relevance to the position being interviewed for. However, employees who suspect that questions are being asked for illegitimate reasons should not automatically assume that discrimination is present. The better approach would be to request an explanation of the reasons that particular information is being sought and then try to determine if it is connected to the ability to perform the job.
- Employers can avoid discrimination complaints by ensuring that questions asked during the hiring process are customized towards the job being sought. A superficial connection between the requested information and the position is not adequate; a substantial connection probably is.
- Employees who believe they were discriminated against in the hiring process may make a complaint to the Human Rights Commission, which investigates and determines whether that allegation is meritorious. If so, the Commission may recommend that a hearing be held where an adjudicator can award damages or other remedies if discrimination is proven.
- If employees feel that they have been discriminated against, they should make notes of the interview immediately after it occurred. As credibility is usually an issue, judges clearly favour testimony and evidence that is consistent with notes made right after the fact.
- Likewise, employers who ask potentially loaded questions should carefully document the exact wording of the questions asked and the reasons why that information was necessary for the job. These documents will be critical in defeating an allegation of discrimination.