Employers should be wary about what they ask a job applicant during an interview – even in passing
By Jeffrey R. Smith
A job interview allows an employer to find out about a job applicant in order to determine if that person is the right fit.
Every job has key requirements, and an employer needs to ensure a candidate is able to do the job. But there are limits to what an employer can ask, even if it thinks the information is important.
Usually, an employer can’t ask questions related to grounds protected under human rights legislation. This may be the case even if the employer thinks it’s a factor in the applicant’s ability to do a job, such as his availability to work during the times he’s needed. An employer has to be careful even raising these topics in casual conversation during the interview.
Recently, a Quebec employer was ordered to pay $7,500 to a job applicant for asking questions related to religion during a job interview. The employer discussed religious restrictions some applicants had working for companies such as Loto Quebec and the Quebec Alcohol Corporation, which led to it asking the applicant if he was a Muslim and if he practiced his religion.
Though the applicant’s lack of experience was the reason he wasn’t hired, not anything to do with his religion, the Quebec Human Rights Tribunal found just bringing up the subject violated his human rights. The tribunal found it didn’t matter who brought up the subject, but rather the fact the employer pursued it and asked multiple questions would cause a reasonable person to feel compelled to answer. As a result, just because the applicant answered the questions didn’t mean he waived his right to protection under human rights legislation.
The tribunal determined the applicant’s religion wasn’t important to the skills or qualities needed for the job. If an employer felt religion was a factor, such as when the applicant would be available for work or if it prevented the applicant from doing certain duties, there would be a high onus on it to prove asking the questions was related to a legitimate job requirement.
But in circumstances like this case, should an employer be penalized if a topic like this comes up in conversation? In an interview, small talk can be a way to create an amiable atmosphere and sometimes personal details can come up. What should an employer do if the conversation turns toward something protected under human rights legislation? Abruptly change the subject? If the applicant openly and willingly discusses the subject, should the employer discourage the conversation under threat of being fined for human rights violations?
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.
