Consider how an employer should best structure the employment relationship, starting with the hiring process, which we will assume starts with job advertisement. The next article in this series will deal with establishing the employment relationship and the terms and conditions of that relationship after a candidate has been selected.
In Alberta there is legislation, the Alberta Human Rights Act, which prohibits hiring and other employment decisions being made on the basis of a prohibited ground of discrimination. For federally regulated employers, there is separate legislation, the Canadian Human Rights Act, which is not a specific subject of this article, but which tracks similarly.
What is a “prohibited ground of discrimination”? Every decision we make is based on some form of discrimination. Discrimination is not always a bad thing. Think of the phrase, “He or she is a person of discriminating taste”, which is meant as a compliment. When we choose one thing over another, we are necessarily using something, usually our personal preference, as the basis to make the selection, such as preferring bananas to apples. Whatever shirt you are wearing as you read this, you discriminated against every other shirt in your closet this morning when getting dressed. It is discrimination based on a person’s specific characteristics, characteristics that cannot be changed, that is typically the focus of discrimination prohibited by legislation.
The first thing an employer should consider is how to write a job advertisement. The Alberta Human Rights Act states that: “No person shall use or circulate any form of application for employment or publish any advertisement in connection with employment or make any written or oral inquiry of an applicant (a) that expresses either directly or indirectly any limitation, specification or preference indicating discrimination on the basis of the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person, or (b) that requires an applicant to furnish any information concerning race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation”, unless the information sought or preference expressed is based on a legitimate need of the business (the legal term for a legitimate business need, in this context, is called a “bona fide occupational requirement”).
The items listed above are the “prohibited grounds of discrimination” and apply to all aspects of the employment relationship, not just the advertisement stage.
An employer should make a list of the qualifications, experience, and skills needed for the job, then draft the advertisement with those things in mind.
Once the advertisement has been drafted, candidates have applied, and some selected for an interview, the employer needs to consider the questions that can be asked during the interview. Although a good interview might flow more like a conversation, a potential trap is that an employer ventures into discussion topics that are later perceived to have been inappropriate.
So, what questions can be asked? As with structuring the job advertisement, generally, appropriate questions are those that are relevant to the qualifications, experience, and skills needed for the job. Questions that should be avoided are those that might relate to, or be perceived to relate to, a prohibited ground of discrimination. Sit down ahead of the interview and make a list of the qualifications, experience, and skills needed, then design interview questions relevant to those matters.
The Human Rights Act says that no employer can refuse to employ or refuse to continue to employ any person, or discriminate against any person with regard to employment or any term or condition of employment, because of the “race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status, or sexual orientation of that person or of any other person”. Note that this list is the same as the list with respect to job advertisements.
What this means is that an employer cannot ask interviewees questions aimed at eliciting information related to the prohibited grounds, or which might be likely to elicit that information.
Examples of questions not to ask:
- How old are you?
- Do you have children?
- Do you plan on having children?
- Are you married?
- Where are you from?
- Where do you go to church?
- What is your social insurance number?
While some of these are obvious, the last question listed is an example of how tricky this can be. It might not seem on the surface that asking someone for their social insurance number could be a problem, but permanent residents are issued social insurance numbers beginning with “9”, so asking this question could identify someone not from Canada. Once a candidate has been hired the employer can ask that they provide their social insurance number as that will be necessary to establish them on payroll.
Just as with drafting the job advertisement, make sure interview questions are relevant to the qualifications, experience, and skills required for the job. Sit down ahead of the interview and make a list of the qualifications, experience, and skills needed, then design questions relevant to those matters.
Write those questions down and follow them during the interview like a script. Having the questions written down allows you to ask all candidates the same questions, which should make it easier to compare them to each other.
Keep notes of the answers on the question page, which again helps compare candidates to each other, but also preserves a record of the interview.
If a candidate volunteers information that strays into the area of a prohibited ground, do not write it down. For example, a candidate might mention a spouse during the interview. Do not write down that he or she is married, and do not go further down that path of discussion, as you might do during a casual conversation.
The advice I provide to clients is to write interview questions and interview notes as though they are going to later be reviewed by a third party either investigating a complaint or deciding whether a violation occurred.
After the interview, keep the questions and notes with respect to each candidate, successful and unsuccessful, for at least one year after the interview as the limitation period for filing a complaint under the Human Rights Act is one year from the date of the alleged contravention of the Act. It can be difficult to remember questions and answers months after the interview occurred without the question list and interview notes.
