Pre-employment job interview: the employer must ask the right questions
20 November 2018
Employers are, for the most part, familiar with the notion of the contract of employment, which is a contract by which a person, the employee, undertakes, for a limited time and for remuneration, to do work under the direction or control of another person, the employer. However, before signing a contract of employment, there is, for the employer and the employee, the pre-employment stage. When we talk about pre-employment, we have in mind the process of selecting a candidate, including asking questions during the selection interview (“job interview”). This is an important step that should not be taken lightly, for even though it is legitimate for an employer to ensure that a candidate has the necessary skills to perform all the tasks which a particular job would require, he must not conduct his quest for information any old how or ask any and all questions going through his mind.
The legislative framework of the pre-employment interview is delimited by several laws, the most important of which are the Charter of Human Rights and Freedoms (sections 4, 5, 16, 18.1, 18.2 and 20), the Civil Code of Quebec (sections 35 and 37) and the Act respecting the protection of personal information in the private sector (sections 2, 5, 9 and 14). Essentially, these legislative provisions protect a candidate’s privacy by prohibiting the potential employer from establishing a file on him or her, unless the employer has a serious and legitimate interest in doing so, and even then, the employer can collect only the information that is relevant or necessary for the purposes of the file (the purpose being to find the candidate that best fits the requirements of the position). It goes without saying that this information must be collected by lawful means and with the authorization of the candidate. For example, searching the Facebook, Twitter or other similar social media accounts of a candidate in order to “dig up” additional information about the candidate would be contrary to the spirit of these laws. In addition, if a candidate refuses to provide personal information, the employer cannot refuse to hire him or her just because the candidate refused to provide such information (unless the collection of the personal information is necessary for the conclusion or execution of the employment contract). As a result, at the pre-employment stage, the following information cannot be requested: the social insurance number, date of birth, place of birth, check specimen or bank account number. This information is generally considered “unnecessary” at the evaluation stage of a candidate’s application for a position.
An employer is authorized to obtain personal information that enables him to assess whether a candidate possesses the skills and qualifications required by the job. Questions about academic or practical training, work experience, qualifications and professional and personal skills are quite legitimate to ask. In the same vein, an employer can go as far as necessary to ensure that the employee is able to adequately perform the essential duties of the job, but some of the questions that the employer may be tempted to ask are discriminatory, and therefore illegal under the provisions of the Charter of Human Rights and Freedoms. As a matter of fact, questions pertaining to one of the prohibited grounds of discrimination are not permitted in job application forms and during pre-employment job interviews. Thus, employers are not allowed to ask questions regarding race or skin colour, sex and sexual orientation, pregnancy status (an employer cannot discriminate against a woman because she is pregnant), marital status, age, religion, political beliefs, language (including accent), ethnicity, social status, disability (physical malformation, use of a wheelchair, guide dog, a prosthetic, etc.) or any another personal characteristic of a potential candidate. While this may seem fairly obvious, sometimes it can be hard to tell which questions are appropriate and which are not. In a recent decision[1], the question on the origin of candidate’s last name was considered discriminatory. When the interview steered towards employer’s international partners, the employer asked a question which, at first glance, seems rather innocuous: “What is the origin of your last name?” However, the candidate made a complaint to the Commission des droits de la personne et des droits de la jeunesse (« CDPDJ ») and the Human Rights Tribunal ruled against the employer, ordering him to pay to the candidate $ 5,000 in moral damages.
It should be noted that an employer cannot defend himself by saying that he did not intend to discriminate against a candidate by asking a certain question. The intention of the employer in asking the question does not matter. In addition, the employer must pay attention to the questions asked not only during the formal interview, but also throughout the meeting because the informal exchanges, before or after the interview, are part of the interview[2].
Nevertheless, an employer may invoke certain exceptions in order to be able to ask potentially discriminatory questions. When an employer wants to ask a potentially discriminatory question, such as question pertaining to medical or personal matters, he must show that each of the questions addressed to the candidate refers to qualities or skills required by the position, or that this information is useful for the implementation of an affirmative action program in existence at the time of the application.
There is also a more specific case, which is the request for information about a candidate’s criminal record. The criminal record is not included in the list of the grounds of discrimination prohibited by the Charter and it is therefore legal for an employer to ask a candidate if he or she has a criminal record. However, the Charter provides that the employer cannot refuse to hire a candidate or retain his or her service if the criminal act is not related to the job.
Lastly, the Charter of the French Language, under section 46, prohibits an employer from requiring knowledge or a specific level of knowledge of a language other than the official language (that is to say French), unless the accomplishment of the task requires such knowledge. As such, an employer should not ask questions in English, for example, during the pre-employment job interview if the tasks associated with the advertised position do not require knowledge of that language. For instance, a position of a “handyman” generally requires the performance of manual maintenance tasks. The fact that the person occupying this position might interact exceptionally with English-speaking clients cannot justify the requirement of English-language knowledge[3].
In conclusion, the employer must ask questions related to the requirements of the position that are reasonable and non-discriminatory. He must focus his attention on the skills, the nature and duration of the experience gained, the education and availability of the candidate.
[1] Kerdougli c. La Vie en Rose inc., 2018 QCTDP 8.
[2] Kerdougli c. GE Renewable Energy Canada Inc. (Alstom réseau Canada inc.), 2018 QCTDP 7.
[3] Pouliot c. Quality Inn & Suites Lévis, 2010 QCCRT 592.
Autor : Me Marya Repac, Cain Lamarre
