Friday, September 20, 2013

Not Illegal to Ask Job Applicants about Availability

That headline may seem unremarkable, if you haven't followed these issues.  It's slightly controversial, though.  Go to this entry and scroll down to the bottom segment of the post for a bit of background.

s.23 of the Human Rights Code addresses certain recruitment issues:  You can't publish a job posting that "directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination."  Nor can you make inquiries that do so during an application process, with the exception that in a personal employment interview you're entitled to ask questions if you would be justified in discriminating (i.e. if you can't reasonably accommodate without undue hardship).

So, if you're applying for a job, I'm not generally allowed to ask whether or not you have kids.  Similarly, if I ask you how familiar you are with Spongebob Squarepants or Dora the Explorer, then, assuming that they don't have any relevance to the position, there's a strong inference that I'm trying to draw out whether or not you have kids.

Where the question becomes difficult and controversial is here:  If I ask you whether or not you'd be available to travel, up to 25% of the time, and on short that question a problem?

People with children are, by a long shot, more likely to say "No" to that question.  So if it's a question on a job application, is it an inquiry which "directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination"?

I've argued that, generally speaking, such a question is not a problem.  Imposing such a requirement, without exception, is going to be something you'll need to justify, because the rule would be discriminatory against parents...but that's okay, if you can show that the requirements of the position are such that you couldn't reasonably work around it without undue hardship.

The Widdis Case

The Human Rights Tribunal recently posted a case addressing this issue:  Widdis v. Desjardins Group.  Hat-tip to David Doorey who posted about this case recently - I encourage you to read his commentary for a different view.  He and I differ in our interpretations of the scope of s.23; he argues that s.23 has a broader scope, encompassing questions such as "What high school did you go to?" on the basis that a person's high school can include significant information about the place of origin, ethnicity, and/or religion.  And his position is consistent with that taken by the Ontario Human Rights Commission.

Widdis was decided in a way more consistent with how I would interpret the Code.  In an interview, an applicant was asked if she was available to work Saturdays.  Her evidence (which the Tribunal accepted) was that she indicated that she was not because she was a Seventh Day Adventist (i.e. she observes a Saturday Sabbath), and she was cut from the application process on that basis.

On the facts as determined by the Tribunal, she was the victim of unlawful discrimination.  She was declined because she was unavailable to work Saturdays, and she was unavailable for religious reasons.  (It's not clear, on the face of the decision, whether or not it was crucial that she advised of the religious basis for her unavailability.  I would argue that this is not required to make out discrimination.)

However, on the s.23 question as to whether or not the question itself of Saturday availability offended the Code, the Tribunal said this:  "Questions with respect to an applicant's availability to work are legitimate questions which do not seek to identify applicants either, directly or indirectly by a prohibited ground of discrimination."  [Comma usage as in original]

In other words, you're allowed to ask about availability, but if unavailability is due to a prohibited ground, you might be unlawfully discriminating if you make a hiring decision based on their response to the question.

Those who share Professor Doorey's view would presumably argue that the Tribunal erred, and specifically that the error boils down to two words:  "seek to".  The Tribunal borrowed language from the Code itself, and inserted words not present in the Code to add 'intent'.  Which almost strengthens the argument against the Tribunal's interpretation:  Look, the Tribunal couldn't reach that conclusion without adding language which simply isn't part of the Code.

Though the other changed term is "identify applicants", rather than "classifies or indicates qualifications", as it exists in the statute.  And while I don't think that fully fixes the Tribunal's framing of the language, it's an important distinction.  It's vague terminology, and it's not entirely clear how an "inquiry" can "classify or indicate" anything - one might argue that making an inquiry implies that the answer is relevant to the job, but not all questions in a job interview directly relate to the job.  Consider one of Google's notorious questions:  How would you weigh your head?  (Hint:  Google doesn't actually have any jobs, to the best of my knowledge, involving the weighing of one's own head.  As a side note, this is one of Google's stumper's that's actually stumped me:  Even Googling the answer, I can't find any methods which don't make unwarranted assumptions, such as uniform body density, etc.  Anyone have some insight?)

I made this point in relation to the controversy a few months back regarding potential employers asking for Facebook usernames and passwords for screening purposes.  Professor Doorey argued that the question itself violates s.23, because accessing somebody's Facebook account is likely to give you information regarding various prohibited grounds.  I replied that, while I find the practice appalling, I might imagine a less-appalling scenario where an employer asked for the username and password to see whether or not an employee would provide it.  In the event that an employer never actually accesses the Facebook account, then there is exactly zero probability that the inquiry will expose the employer to information relevant to prohibited grounds...well, unless the password is something like "iamachristian".  (But if that kind of remote possibility renders the question illegal, then literally any inquiry would be prohibited.)

I would think that a question which asks, point blank, about a prohibited ground is probably the meaning of "directly" classifying or indicating a requirement based on a prohibited ground.  But the challenge is 'indirectly'.  Does a question that may have an answer that identifies information based on a prohibited ground prohibited?  So, would asking about work history be prohibited because of the possibility that the answer might be "I worked in the British Consulate" or "I worked for the Catholic Archdiocese of Toronto", noting that either one yields, with a very high probability of certainty, information from which one might infer a prohibited ground of discrimination.  Would an application form asking for your address be prohibited because certain neighbourhoods have distinct cultural and religious demographics, leading to probabilistic inferences about those prohibited grounds?  I would argue in the negative, that the core issue relates to the nature of the information sought by the inquiry.

I think most of us would agree that, whatever the language means, asking "What religion are you?" would be clearly out.  It's a direct inquiry about creed, which seems to run awry of any reasonable interpretation of the language.  Similarly, asking people about whether or not they eat beef but not pork is probably an indirect inquiry about creed.  But asking a person "Are you available to work Saturday" is almost certainly a legitimate employment-related question, and the odds of a "No" answer being interpreted as "This candidate is probably either Jewish or Seventh-Day Adventist" is pretty negligible.

In light of that interpretation, I think the Tribunal's framing is still messy, requiring an intent element even for queries which "directly" identify applicants on the basis of a prohibited ground, but I think that's a minor grammatical issue.  And to be clear, I don't think that anyone would seriously argue that s.23 requires an intention to discriminate.

I was once contacted by a headhunter for a law firm looking to hire; his first three questions were age, marital status, family status.  When I later interviewed with that firm, the senior partner reiterated those same questions.  They offered me a position, which I declined.  Notwithstanding that they offered me a position, and notwithstanding that I didn't even want the position at that point, I could easily have grounded a Human Rights Application based on s.23 had I been so inclined.

Caution for Employers

The result in Widdis, while probably correct, is a cautionary tale for employers.  The employer denied having been advised of her religion, arguing that they would have accommodated her had she raised it.  The Tribunal rejected those facts, but I don't think that they're fundamental to the conclusion.  It seems to me that, if I ask a candidate "Are you available to work Saturdays?", and then I refuse to hire them because they simply replied "No", then if it turns out that, unbeknownst to me, the unavailability is religious in nature, I've probably committed prima facie discrimination, meaning that I either have to justify the refusal to hire based on a BFOR.  This often won't be so difficult for a small employer hiring to fill specific timeslots for which the existing workforce is not available, but as workplaces become larger and hiring drives are looking to fill more positions, this becomes increasingly nuanced.

Alternatively, I could try to frame the question differently, to not capture unavailability subject to a duty to accommodate, though it's awkward:  "We generally require employees in this position to work Saturdays, though we accommodate where we are required to do so by the Human Rights Code.  Would this create a scheduling conflict for you?"  It's a yes-or-no question, where somebody entitled to accommodation would answer the same way as someone who is available to work.  Yet it could easily be misunderstood.  "Are you available to work Saturdays or, if unavailable, is such unavailability related to a prohibited ground under the Human Rights Code?  Same result, but I'm pretty sure most people would simply answer "Huh?" to this.  The dual construction of the question, while grammatically and syntactically correct, is confusing.

Then, of course, there's the 'saturation' problem faced by some employers:  Consider a 24/7 call centre in a small town with a concentrated demographic of Sunday-Sabbath observers.  In the ordinary course, a call centre accommodating a Sabbath or periodic religious holiday isn't that big of a deal - you just schedule someone else in to cover the shift.  But what happens where your entire workforce wants Sundays off?  Do you grant accommodation on a first-come first-served basis?  Seniority basis?  Do you attempt to rank the bona fides of the employees' religious devotion, to accommodate those who can't work Sundays, but not those who merely don't want to miss the afternoon football game?  Or do you just say, "We can't accommodate everyone who wants Sundays off, so we won't accommodate anyone who wants Sundays off."

These are all problems that I can assist employers navigate, to help employers find practical solutions for their circumstances which minimize the potential for significant liabilities under the Human Rights Code or otherwise.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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