October 1, 2003by Israel Foulon LLP
Question: I am in the process of starting my own company and need to hire new employees. I have been told human rights legislation prohibits me from asking certain questions of prospective employees. Could you provide some guidance on how to write job advertisements and application forms that do not run afoul of human rights obligations?
Answer: Well-meaning employers can inadvertently and unintentionally violate the law by advertising in a way that directly or indirectly discriminates against job applicants. Typically discrimination occurs when information is sought that has nothing to do with performing the job. Creating a legally sound job advertisement means ensuring the job requirements list qualifications that directly relate to a person’s ability to do the job.
If an employee does not need a car to do the job, the application form should not ask for driver’s license information. If, however, there are reasonable requirements or duties of employment that directly and genuinely relate to the performance of the job, it is perfectly alright to specify these in the job advertisement. It would be reasonable for an employer to require a taxi cab dispatcher to be able to speak clearly in English. But it would be discriminatory to require that the individual speak without an accent.
Even when an employer is successful in writing a fair and non-discriminatory advertisement, if the application forms ask for the wrong information, it may still be open to allegations of human rights violations.
Here are a few examples of areas to watch out for:
- Race, colour and religion: Avoid all questions about an applicant’s race and colour. Almost all question relating to religion or creed are prohibited.
- Gender: Never ask for an applicant’s gender. Gender discrimination is a forbidden form of discrimination in all jurisdictions.
- Age: Depending on the province, an employer may ask if an individual has reached the age of 18 or 19 or is older than 65. Do not ask for a specific date of birth. The easiest way is to ask if the applicant is of legal working age.
- National or ethnic origin: Employers can only ask whether an applicant is eligible to work in Canada .
- Marital and family status: Questions about whether an applicant is married, single, divorced or widowed should be avoided.
- Height and weight: Be careful about asking about height and weight as such questions can result in allegations of indirect discrimination. An employer who sets a height or weight restriction must be able to establish that such a requirement is essential to the job.
When in doubt have the recruiting forms reviewed by a person with legal expertise to avoid human rights claims.
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 firstname.lastname@example.org. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today