October 2, 2002 by Israel Foulon LLP
Question: We are seeking to fill a secretarial position that requires the employee to work overtime hours on a regular basis. Is there a problem with asking any potential new hire whether or not she has any family obligations (such as children), which might prevent her from fulfilling the requirements of the job?
Answer: Provincial human rights legislation prevents employers from discriminating against potential new employees during the hiring process. In particular, a person’s marital or family status is a prohibited ground of discrimination and therefore, as a matter of caution, questions about whether or not the potential new hire has a family or children should be considered off-limits. This will guard against a potential complaint for discrimination in hiring. A more appropriate approach for you to take might be to simply ask whether or not, if hired, the employee would have a problem with working overtime on a regular basis. This would accomplish what you are seeking without opening yourself up to a possible human rights complaint.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or pi@qtw38575.mywhc.ca. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today