August 9, 2022
By Jillian Tomimoto, Innovation & Technology Legal Intern at Donna Purcell QC Law
Every interviewer has several key questions they ask candidates to determine if the candidate is the right person for the job; other questions are asked to break the ice with the interviewee in what can be a nerve-racking situation. But these questions could be exposing your company or organization to legal liability.
It is against the law in Alberta for employers to discriminate against applicants during pre-employment inquiries, including through job advertisements, application forms and interview questions (Alberta Human Rights Act, RSA 2000, c A-25.5, s 8 [Act]). Employers may unintentionally collect certain information via application forms and interview questions that could be used to discriminate against a job candidate. If a hiring decision is based on a prohibitive “ground of discrimination”, this could open an employer up to a discrimination lawsuit.
The protected grounds in Alberta include:
- gender, gender identity or gender expression
- race or colour
- religious beliefs
- physical or mental disability
- place of origin or citizenship status
- marital, common-law or family status
- source of income
- sexual orientation
In order to avoid potential issues, employers should be aware of the specific protected grounds and avoid asking questions which require an interviewee to disclose their status.
It is, however, legal for employers to ask questions concerning protected grounds if they require that information to verify that the candidate can perform the job (“Pre-employment inquiries” (July 2017), online: Alberta Human Rights Commission.
For example, drinking establishments may ask potential bartenders if they are 18 years of age or older because that is the legal age to serve liquor in Alberta.
Below are a few examples of both acceptable and unacceptable interview questions, advertisements and application requirements for employers based in Alberta (“A recommended guide for pre-employment inquiries” (July 2017), online: Alberta Human Rights Commission:
- Instead of asking if a candidate has childcare arrangements in place, you can ask the applicant for their availability for shift work, evening work, weekend work or travel.
- It is not permissible to ask a candidate if they are a Canadian citizen. Although citizenship is not a protected ground named in the Act, citizenship could be viewed as a proxy for place of origin, race or colour, which are protected grounds. Instead, you can ask the applicant if they are legally entitled/permitted to work in Canada.
- You should not ask an applicant if they have received or are receiving Workers’ Compensation. Asking this may reveal a candidate’s physical disability, which can be contrary to the Act. However, requiring an applicant to pass a job-related medical examination after acceptance of a job offer is lawful.
Employers should steer clear of questions that require a candidate to provide information regarding a protected ground. A hiring decision influenced by a prohibitive ground may amount to discrimination and breach the Act. An employer committing a breach of the Act may be found liable for lost wages, damages to dignity and legal costs of the interviewee (Kvaska v Gateway Motors (Edmonton) Ltd, 2020 AHRC 94; Act, s 32).
For more information or to see if your company’s hiring and employment practices are compliant with human rights law, contact our Employment Law Group.