Canada: Top 10 Issues For Employers, Issue #5: Dos and Don'ts of Interviews

This is the fifth instalment in our Top 10 Issues for Employers series. Interviewing prospective employees can be a difficult process for the applicant and the employer alike. For the employer, aside from ensuring that the best applicant is selected, the interview process directly engages human rights and privacy laws. In general, these laws have an impact on what can be said and done in an interview and provide individuals with legal recourse where employers cross the line during the hiring process. Management and human resources staff can manage risk by clearly setting out, in advance, formal interview policies and questions that target the applicant's ability to perform the essential duties of the position. Overall, employers should strive to create a hiring process that is consistent, fair, objective and comprehensive, without collecting more personal information than is necessary to make the hiring decision.

OVERVIEW

Employers may not refuse employment or otherwise discriminate against a person on grounds protected by applicable human rights legislation. Protected grounds vary by province, but generally include (without limitation) race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation and age. Questions relating to any prohibited grounds should be avoided as an applicant may draw the inference that the hiring decision was based on something other than merit. This can occur even if the employer did not intend to discriminate. Employers must be aware of how the interview process, which may include in-person questions, written exams, and application forms and background checks, may contain subtle forms of discrimination that violate human rights law. During the hiring process, employers also have a duty to accommodate applicants' needs related to any particular protected ground. Unless the accommodation results in undue hardship for the employer, a failure to accommodate may give rise to a claim of discrimination.

A human rights complaint exposes employers to potential reputational damage in addition to potential monetary damages. In most jurisdictions, an individual would only have to point to facts that could establish discrimination. After that, the employer then has to prove there was no discrimination, which leads to the unenviable position of an employer having to defend its hiring practices publicly.

In addition, employers should be conscious that the interview process is further restricted by privacy laws. Generally speaking, an employer should only collect, use and disclose personal information for legitimate purposes and only as much personal information as is necessary for such purposes. All forms of personal information may only be collected with the consent of the applicant. In interviews, consent should be implied for most questions related to the position. In any event, employers should try to collect only the information necessary to make the hiring decision. Over-collection is prohibited and can lead to problems for employers.

THE DOS AND DON'TS

Before the Interview

DO:

  • Create a uniform hiring process for all applicants.
    Draft interview questions in advance based on the essential duties and requirements of the position. Develop the "answers" and assess applicants based on these objective criteria. Ask all applicants the same questions.

These measures guard against informal subjective assessments entering into human-resource decision-making.

  • Prepare a panel of interviewers to assess applicants according to the hiring process.
    A panel assessing an applicant's answers allows for a more diverse and objective perspective. A panel will also provide multiple witnesses to the interview, one of which should record thorough notes.
  • Offer to accommodate an applicant, if he or she requires accommodation, before the interview.
    Applicants are generally responsible to inform potential employers of their needs and providing sufficient detail for the employer to respond accordingly. Once aware of the need to accommodate, employers should cooperate with the applicant in creating an interview or hiring mechanism that addresses the duty to accommodate arising under human rights legislation.

DON'T:

  • Make hiring decisions using informal, ad hoc.
    While an informal conversation with an applicant may be appealing, an uncontrolled, subjective process can lead to subconscious bias and, in some cases, discrimination allegations. Having a plan and a written procedure before an interview will give structure and objectivity to questioning without eliminating the desirable conversational aspects.
  • Be unprepared.
    An interviewer who is unprepared for an interviewee will tend to focus on a person's superficial characteristics rather than their merit.
  • Use social media screening without the consent of the applicant and without considering whether you need such personal information.
    An employer must obtain an applicant's consent to collect their personal information. Personal information on social media is no different. An employer should not attempt to skirt privacy rules by using their personal account to screen an applicant or rely on a third party to conduct the screening.
  • Rely on the information on social media to the exclusion of traditional sources of personal information.
    In general, employers should be wary that the information obtained on social media may be unreliable, inaccurate, and usually unnecessary.

During the Interview

DO:

  • Ask an applicant about his or her qualifications, relevant experience, training and previous positions.
    Human rights and privacy laws do not limit the right of employers to obtain legitimate information about the people they may hire. All interview questions and topics must be designed to elicit job-related information concerning the applicant's relevant knowledge, skills and ability to perform the key duties of the position.
  • Describe the job requirements such as overtime, weekend work or travel.
    Framing questions in terms of job requirements is an effective way of removing discriminatory elements in questions.
  • Take notes, take notes, take notes.
    Taking and retaining notes and other written records of the interview will provide contemporaneous evidence in any discrimination claim before a human rights tribunal or the courts. While taking notes cannot immunize employers to claims, once started, such evidence can be a powerful tool to defend a claim.

DON'T:

  • Ask questions that provide information regarding a prohibited ground of discrimination.
    The following is a non-exhaustive list of general topics to avoid in an interview:
    • Race, colour, ancestry or place of origin
      If you need information about an applicant's immigration status, simply ask whether the applicant is legally entitled to work in Canada. Avoid asking other questions related to a person's educational institution, last name or any clubs or affiliations that are designed to indicate their race, ancestry or place of origin.
    • Religious beliefs or customs
      Employers may not ask about a person's religious beliefs or customs. If you need information about when an applicant can work, ask whether he or she can work overtime or weekends if that is a legitimate job requirement.
    • Sexual orientation
      There is rarely (if ever) a reason you need to know an applicant's sexual orientation. Questions about a person's personal relationships should be completely avoided in almost all cases.
    • Marital or family status
      Instead of asking about a person's family or marital status, simply ask if the applicant can work the hours required of the position or if they are able to travel or relocate.
    • Physical or mental disability
      Avoid asking about an applicant's general state of physical or mental health or any history of sick leaves, absences and workers' compensation claims. Employers may, however, ask the applicant whether they are able to perform the essential duties of the position and describe the physical and mental requirements of the position.
    • Gender
      Avoid questions about gender, including questions about pregnancy, breastfeeding, childcare arrangements and future plans to have children.
    • Age
      While employers may ask an applicant for their birthdate on hire, the age of the applicant is rarely relevant unless there is a question as to whether the applicant has reached the legal working age, which varies from province to province.
    • Criminal or summary convictions
      The permissibility of questions relating to criminal history will vary from province to province. In general, employers may ask the applicant about their criminal record where there is a legitimate reason to know, such as when the job involves a position of trust or working with vulnerable persons.
    • Former names
      Avoid asking a person about their former names unless needed to verify previous employment and education records. Avoid asking about names to determine someone's origin, their maiden name or if they are related to another person.
    • Language
      What languages an applicant speaks may cross the line if they are really questions about race, place of origin or ancestry. The exception is, obviously, where the ability to communicate in certain languages is specifically required for the position.
    • Source of income
      It is recommended that employers avoid asking about an applicant's source of income, as this is irrelevant and some sources have a social stigma attached to them, such as social assistance, disability pension and child maintenance.
  • Ask questions designed to illicit irrelevant information or information unrelated to the legitimate job requirements.
    Privacy laws require that employers only collect personal information that a reasonable person would consider appropriate in the circumstances. Again, the employer must only do so with consent of the applicant. The best practice is to only collect information that is reasonably necessary to make a hiring decision.

After the Interview

DO:

  • Keep the interview notes and documentation for as long as possible.
    Different jurisdictions have different limitation periods in relation to bringing human rights or privacy complaints or other types of litigation. Employers should keep all materials from the hiring process for as long as necessary to comply with applicable legislation and protect themselves from any possible litigation.
  • Ask the selected individual(s) for further information.
    Once hired, it is permissible to ask a person for further documentation necessary to maintain and establish the employment relationship if there is a legitimate need for that information. When an offer of employment is accepted (or conditional on certain checks being completed with the consent of the individual), it will generally be necessary to collect an employee's birth date, social insurance number, personal contact information and all other personal information needed to establish the relationship, including information needed to enroll the employee in benefits plans and payroll.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
12 Sep 2017, Seminar, Toronto, Canada

Please join us as we take an in-depth look at the legislation and the impact on the industry.

14 Sep 2017, Seminar, Toronto, Canada

Change, stress and uncertainty are ever]present factors in todayfs legal environment, and specific aspects about the practice of law make it difficult to thrive in the profession long term. Luckily, there are specific research]based strategies that have been shown to help lawyers thrive and lead to more effective ways to manage stress and pressure.

5 Oct 2017, Seminar, Toronto, Canada

Blakes is proud to host our New to In-House Series, designed to bring together junior and mid-level in-house counsel for a candid exchange of insights to highlight and address some of the challenges and opportunities facing in-house lawyers in their roles today.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.