Equality in Hiring – When are interview questions discriminatory?

Applying for a job can be an exciting and stress-inducing time. The stakes are high for job applicants – their literal livelihood may depend on the outcome. We all want to make a good impression and be evaluated on the skills and experience we bring to the job.

However, research shows that sometimes, unfair biases and stereotypes may influence the hiring process. In one study, applicants with Asian names were much less likely to be called for interviews than people with Anglo-Canadian names. In another poll, half of Canadians said it’s acceptable for an employer to screen out disabled applicants as too risky to hire; Racialized people, people with disabilities, and other groups protected from discrimination by BC’s Human Rights Code may therefore worry about being unfairly filtered out of the job competition due to irrelevant characteristics.

The protections of BC’s Human Rights Code apply even before you’ve got the job. Discriminatory job ads are prohibited by the Code, as are discriminatory job requirements.Old school prerequisites for female flight attendants to be single, under 30, and of a specific height and weight, for example, would certainly not fly today.

Job applicants therefore often want to know what questions an employer is allowed to ask about their personal lives or about characteristics that are protected from discrimination under the Code, like religion, place of origin, disability, sexual orientation or family status.[1] Is a question about your intention to get pregnant discriminatory? Or your mental health status?

When are interview questions discriminatory?

Unlike in Ontario, BC’s Human Rights Code does not explicitly prohibit employers from asking questions that touch on personal characteristics protected by the Code. However, the Tribunal has found such questions to be discriminatory in some cases.

The Tribunal has commented that asking questions that touch on personal characteristics protected by the Code, especially when the questions are not part of the natural flow of conversation, could potentially, on its own, be discriminatory. However, in all of the reported cases to date, the problematic questions at issue have been part of a larger context that involved a failure to hire the complainant for a number of allegedly discriminatory reasons.[2]

To succeed in this kind of a case, a complainant will generally have to show that:

  1. They were qualified for the job
  2. They were not hired
  3. Someone no better qualified than them, but who lacked the personal characteristic at issue, was hired, or the job was re-posted and the employer continued to seek applicants with the complainant’s qualifications.

The employer would then have an opportunity to try to show that their actions were justified.[3]

A good example of a case where the Tribunal found the employer had discriminated because of the questions they asked in an interview was McGregor v. Morelli and Quarterway Hotel.[4] During her interview for a waitressing position, Ms. McGregor was asked questions about her age, marital status, and whether she had kids. The interview ended shortly after she answered these questions. Ms. McGregor was qualified for the job, but someone else was eventually hired for the position.

The Tribunal found that, without an explanation for why the questions were relevant, the questions were inappropriate as the answers might be used for discriminatory purposes. It did not matter that the employer didn’t intend to discriminate.

The Tribunal recognized that an employer may have legitimate concerns about an applicant’s availability for shifts. However, such concerns should be addressed through direct questions about availability, rather than questions about protected characteristics. Employers should avoid making assumptions that a parent will be less committed to their work, for example, or that a young woman is going to go off on maternity leave shortly after starting the job.

There may be legitimate reasons for an employer to ask questions about a protected characteristic. If a characteristic is relevant – what’s called a bono fide occupational requirement – then an employer can ask about it. For example, to serve alcohol, a person must be at least 19. Their age is therefore relevant to the job. In one case, the Tribunal found that a casino’s questions about whether a job applicant was related to any other employees who worked for the casino was lawfully justified when hiring for their security team.[5]

Should I lie if asked a discriminatory question?

It may not be much comfort for a job applicant to know that if they are asked discriminatory questions and don’t get the job, they can start a long legal process to obtain a remedy. In the end, they still don’t have the job they applied for. When faced with what appear to be inappropriate questions in a job application or interview, an applicant may therefore be tempted to be dishonest about their protected characteristic, whether it is a disability, family status, or a criminal record.

The problem then arises when the employer finds out about the dishonesty and either refuses to hire the individual or fires them. The Tribunal has found that dishonesty in the job application process can be a legitimate and non-discriminatory reason for firing someone. This may be true even when the dishonesty relates to a protected characteristic.[6]

However, a recent Ontario Human Rights Tribunal decision suggests that dishonesty in response to a discriminatory interview question will not necessarily justify termination or a refusal to hire.

In Haseeb v. Imperial Oil Ltd.,[7] the employer required applicants to have permanent resident status in Canada. Mr. Haseeb did not have permanent resident status, but was eligible for a three-year Canadian work permit. During his interview, he repeatedly answered ‘yes’ to questions about his ability to work in Canada on a permanent basis. These answers were dishonest. He was offered a job, but when he was unable to provide the required documentation, the offer was rescinded. He filed a human rights complaint alleging discrimination on the basis of place of origin, citizenship and ethnic origin.

Employers should take steps to create a barrier- and discrimination-free hiring process.

The Ontario Human Rights Tribunal agreed that it was discriminatory for the employer to require that applicants be entitled to work permanently in Canada. The Tribunal held that the respondent had not shown that this requirement was justified. Therefore, the interview questions about the applicant’s ability to work permanently in Canada were also discriminatory.

The employer argued that the job offer was rescinded because of the applicant’s dishonesty. The Tribunal rejected this argument. The Tribunal was not persuaded that if Mr. Haseeb had been honest, he would have been hired. In fact, the Tribunal found the opposite: if he’d been honest, he would have been deemed ineligible for the position. His dishonesty had to be viewed in context: he misrepresented his eligibility for permanent status in order to avoid being categorized by the employer as ineligible before his skills and experience could even be evaluated. His claim of discrimination was therefore justified.

Conclusion

Employers should take steps to create a barrier- and discrimination-free hiring process. If the process contains unfair barriers to people with a protected characteristic like a disability, for example, then the process itself may be discriminatory. As stated by the Tribunal in Hawknes v. Vancouver Public Library, discrimination “may also be demonstrated by pointing to aspects of the hiring process that embed barriers against people based on their protected characteristics. The purposes of the Code are served when such barriers are identified and eliminated.”[8]

Employers are well-advised to heed these words from a 1996 case, which, unlike the sexist requirements for female flight attendants, have withstood the test of time:

 [Human rights law] does not prohibit the mere asking of questions that touch in some way on a prohibited ground of discrimination. In my view it was not the intent of the legislature to impose such limits on employment interviewers that they are paralysed from engaging in normal social conversation out of fear that they may violate [human rights laws] by alluding to some matter which touches on a prohibited ground of discrimination. That does not mean interviewers need not be concerned with the content of their questions. They should be sensitive to the person they are interviewing and avoid questions that may be perceived as offensive. They should also avoid asking questions that may elicit information that could be used to discriminate on a prohibited ground unless they have a lawful requirement for that information.[9]

[1] See here for a complete list of protected characteristics in the employment context.

[2] Jahromi v. Link2 Manufacturing and another, 2017 BCHRT 161.

[3] See Oxley v. British Columbia Institute of Technology, 2002 BCHRT 33 at paras. 68-72.

[4] 2006 BCHRT 277.

[5] Beach v. Treasure Cove Casino, 2013 BCHRT 162.

[6] See Beach v. Treasure Cove Casino, 2013 BCHRT 162; Smith v. Federated Co-operatives Ltd., 2006 BCHRT 208; Patrie v. BC Transit, 2017 BCHRT 118.

[7] Haseeb v. Imperial Oil Ltd., 2018 HRTO 957.

[8] Hawknes v. Vancouver Public Library, 2017 BCHRT 250.

[9] Mbaruk v. Surrey School District No. 36, [1996] B.C.C.H.R.D. No. 50


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