October 16, 2002
by Israel Foulon LLP

Can you ask these questions in a job interview?

Here is a list of questions to test your human rights IQ. Can you ask these questions in an interview? Although the answers discuss the Ontario situation, most Canadian provinces are consistent in the treatment of these issues. Hint: Focus on how the question will sound to the candidate, rather than on what you would intend by the question.

Can you ask these questions?

1. How many children do you have?

   O Yes O No

2. Would you be able to work on Saturdays to fulfill the job requirements?

   O Yes O No

3. Do you have any handicaps?

   O Yes O No

4. Will you start a family soon?

   O Yes O No

5. If you are hired, would you bring in a photograph for your personnel file?

   O Yes O No

6. Would you bring in a photograph to attach to your application?

   O Yes O No

7. What schools have you attended?

   O Yes O No

8. Do you speak any languages fluently?

   O Yes O No

9. This job requires heavy lifting. Do you have any physical problems we should know about?

   O Yes O No

10. Have you ever been arrested?

    O Yes O No

11. Have you ever received treatment for drug or alcohol abuse?

    O Yes O No

Answers

1. No. This question is not relevant at the interview stage. Even if the position involved the care of children, the proper question would be, “Tell me about your experience with children between the ages of two and four” Even if the company has on-site day care and wants to know this information for planning purposes, the question should not be asked until an offer of employment has been made and accepted. At that time, questions can be asked as to whether or not the employee wishes to avail herself of the company-provided day care and, if so, how many children would participate.
2. Yes, but only if the job requires Saturday work. The organization should be aware that if a person has a religious reason for not being able to attend on Saturdays, the organization may be required to be flexible and accommodate that religious observance.
3. No. Even if a candidate obviously has some form of handicap, it is critical to ask about the candidate’s ability to do the job. It is fair to ask questions regarding the candidate’s ability to work overtime, lift heavy objects, answer telephones, read incoming mail and so on provided the questions relate to the essential functions of a position. Once an offer of employment has been made and accepted, it is perfectly proper to ask if the new employee has any need for accommodation and to discuss what those needs may be. To ask those sorts of questions during the job interview exposes the organization to a charge of discrimination in hiring.
4. No, this question is not proper. It is illegal to discriminate against candidates on the basis they may or will have a family. But it is okay to ask if the candidate will be able to work through the end of a particular time period, if the job is a time-sensitive or term position. If these types of questions are being asked, they should be asked of both male and female candidates. This question is often not specifically asked in an interview, but can be inadvertently raised in casual chitchat. For example, if an interviewer talks about her own children during the interview, the candidate might feel this is an indirect attempt to get information about the candidate’s plans for a family. The interviewer’s comments may have been innocent, but the candidate could think they were irrelevant and potentially discriminatory. Under no circumstances should this question be asked.
5. Yes, it is appropriate to have photographs of employees for personnel or identification purposes.
6. No. Even when the purpose is simply to distinguish the candidate, it is dangerous to insist on a photograph of candidates. Minority and women candidates have often said they feel their resumes are screened at the application stage. Insisting on a photograph will simply add fuel to that concern.
7. Maybe yes, maybe no. The question should be focused on the specific training and education which a candidate has received relevant to the job description. The Ontario Human Rights Commission has issued a guideline suggesting questions regarding what schools a candidate attended might be discriminatory, because it would tend to elicit information regarding national origin of immigrant candidates or in some cases religious affiliations. As long as the questions are related to specific training or education necessary for determining the candidate’s qualifications, the question is safe. General chitchat regarding irrelevant issues, such as nursery school, kindergarten or primary school, should be avoided.
8. Maybe yes, maybe no. If fluency in languages is a relevant job characteristic, this is a fair question. Airlines, hotels, tourism companies and retail stores in tourist areas may be anxious to attract candidates who speak a number of languages. On the other hand, if the job is simply an assembly-line position which only requires knowledge of English, questions regarding other languages are not relevant. Furthermore, there has been litigation regarding whether insisting upon perfect fluency in English is a form of discrimination on the basis of national origin when the position does not call for such linguistic abilities.
9. No. Instead ask whether the candidate has experience with a lot of heavy lifting. Ask the candidate if he believes he would be able to fulfill the job requirements of heavy lifting. Advise the candidate any offers may be contingent upon a medical examination confirming the candidate is able to do heavy lifting. The question in the quiz is too broad and may expose the organization to a complaint.
10. No. The Ontario Human Rights Code prohibits discrimination on the basis of record of offences, which is defined as an offence where a pardon has been granted that has not been revoked under the Criminal Records Act ( Canada) or an offence in respect of any provincial enactment. In general, the appropriate question to be asking is whether the employee has been convicted of an offence in which a pardon has not been granted. Section 24(1) of the code does allow organizations to discriminate on the basis of a record of offences if it can be proven the organization’s position is reasonable and bona fide because of the nature of employment.
11. Two decisions give some clarification to the law in Canada about inquiries regarding drug or alcohol use. These cases are Entrop v. Imperial Oil and Canadian Human Rights Commission v. The Toronto-Dominion Bank. The cautious approach is not to ask questions regarding drug or alcohol abuse unless the position is a safety-sensitive one. Labour tribunals and arbitrators have recognized concerns regarding drug or alcohol abuse are legitimate in the transportation industry. Nonetheless, any organization seeking information regarding drug or alcohol abuse should also have a treatment protocol. In Entrop the bank had mandatory urine testing for candidates. Candidates who tested positive were referred for treatment and monitoring at company expense.

    The Ontario Court of Appeal held the policy was discrimination on the basis of disability and the bona fide occupational requirement defence could not be invoked as the bank failed to show the policy was reasonably necessary to assure proper job performance. The policy was not rationally connected to employee performance or employee safety. Similarly in Entrop the bank had a policy requiring employees in safety-sensitive jobs to disclose past alcohol or drug abuse problems. The sanction for a positive test was termination. The Ontario Court of Appeal held the company’s policies were discriminatory. The mandatory reporting requirements and testing for past drug use were discriminatory and were not bona fide occupational requirements because these measures were not reasonably necessary to ensure employees in safety sensitive jobs were not impaired. Further, the court held the policy of automatic dismissal was inconsistent with the company’s duty to accommodate. Therefore, policies and questions regarding substance abuse should be relevant to job performance and an employer needs to be prepared to have a system in place to accommodate substance abusers.

Peter Israel and Chris Foulon are partners in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. They can be reached at 416-640-1550 or cf@qtw38575.mywhc.ca or pi@qtw38575.mywhc.ca. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today.

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Canada Chris Foulon Peter Israel