a) Interview Questions
Human rights legislation in Canada prohibits discrimination in the hiring process. Many questions an employer may be interested in asking during the interview process may unintentionally solicit information regarding an applicant’s disability, age, religion, or another protected ground. For example, requesting that applicants provide the dates they attended educational institutions may unintentionally solicit information regarding age. Asking an applicant if he or she is available to work particular shifts during the hiring process may solicit information regarding the applicant’s religion or family status. If an applicant is ultimately unsuccessful in obtaining employment, that applicant may claim that he or she was not selected based on a prohibited ground of discrimination. Most employers therefore seek to limit the amount of information sought at the application stage that could unintentionally solicit disclosure of a characteristic that is protected by human rights legislation. More in-depth questions will be appropriate when a conditional offer of employment is made.
Additionally, in most Canadian jurisdictions, it is prima facie discrimination for an employer to refuse to hire someone because their relative works for the company. Whether or not this type of anti-nepotism policy can be justified will depend on the nature of the familial relationship (i.e. cousin vs mother), and the potential impact of having related persons employed by the company. Most employers therefore reserve this type of question until they are prepared to make a conditional offer of employment.
b) Background Checks
In some Canadian jurisdictions, privacy legislation places limits on the collection, use and disclosure of personal information. Notably, these limits may apply even if an individual has consented to the collection of information. As such, when an individual has consented to a background check, the collection, use and disclosure of personal information must be reasonable under the circumstances, given the purpose for which it is being collected, used or disclosed. Employers must therefore have some justification for requesting that employees consent to a background check, criminal or otherwise, as they may be required to demonstrate that the check was reasonable and necessary in the circumstances.
A criminal record check can be conducted only with a prospective employee’s consent. Other types of background checks, such as a social media background check, may be performed without an applicant’s consent, but this type of check may provide the employer with too much information.
c) Pre-Employment Drug Testing
In Canada, employers are generally not permitted to test prospective employees for drug use, or to refuse to employ a person because of the results of a drug test. Adjudicators have found that pre-employment drug and alcohol testing is presumptively discriminatory on the basis of disability and/or perceived disability. Where a position is safety sensitive, drug or alcohol testing may be a valid requirement on the job, but is rarely permissible pre-employment.