When hiring in Ontario, employers must navigate a complex landscape of employment and human rights laws to ensure their interview processes are fair, unbiased, and legally compliant. Asking the wrong questions during an interview can lead to discrimination claims under the Ontario Human Rights Code (the “Code”) and potential legal consequences. Understanding which questions are legal and which are not is essential for maintaining an equitable hiring process.
The Importance of Interview Questions
Employers in Ontario must ensure that interview questions are strictly job-related and do not touch on protected grounds under the Code. A structured and compliant interview process helps mitigate the risk of discrimination claims and demonstrates an organization’s commitment to fair hiring practices.
The Code prohibits discrimination in employment based on the following protected grounds:
- Age
- Ancestry, colour, race
- Citizenship
- Creed (religion)
- Disability
- Family status
- Marital status
- Gender identity, gender expression
- Place of origin
- Record of offences (for jobs not requiring a vulnerable sector check)
- Sex (including pregnancy and breastfeeding)
- Sexual orientation
Employers must avoid any questions that could directly or indirectly elicit information related to these protected grounds.
Legal Interview Questions
Legal interview questions focus on the candidate’s qualifications, experience, and ability to perform the job’s essential duties. Employers should frame their questions in a way that assesses a candidate’s competencies without encroaching on protected grounds.
Examples of legal questions include:
- “Can you describe your previous work experience relevant to this role?”
- “What professional skills and qualifications make you a strong candidate for this position?”
- “Are you legally authorized to work in Canada?”
- “This position requires travel to multiple locations. Are you able to meet this requirement?”
- “Are you available to work the required shifts for this position?”
- “How would you handle a challenging situation in the workplace?”
- “What steps do you take to manage competing priorities and meet deadlines?”
These questions focus on job performance and requirements without delving into protected characteristics.
Illegal Interview Questions
Illegal interview questions are those that seek information about a candidate’s personal characteristics, which are protected under the Code. Employers should avoid any direct or indirect inquiries related to a candidate’s race, age, gender, marital status, religion, or other protected grounds.
Examples of illegal questions include:
Personal Information
❌ “How old are you?” (Instead, ask: “Are you 18 years or more? Yes or No”) ❌ “Do you have Canadian citizenship?” (Instead, ask: “Are you legally eligible to work in Canada?”)
Family and Marital Status
❌ “Are you married?” or “Do you have children?” ❌ “Who will take care of your children while you work?” ❌ “Are you planning to have children soon?”
Disability and Health
❌ “Do you have any disabilities or medical conditions?” ❌ “Have you ever taken sick leave at your previous job?” ❌ “Do you require any accommodations?” (Accommodations, specific to the essential requirements of the role being applied for, should only be discussed after a conditional job offer has been made.)
Gender Identity and Sexual Orientation
❌ “Are you male or female?” ❌ “What is your sexual orientation?” ❌ “Do you prefer to be addressed as Mr., Mrs., or Miss?” (Instead, ask: “What name and pronouns do you prefer?”)
Religion and Creed
❌ “What religion do you practice?” ❌ “Do you celebrate Christmas/Easter?” ❌ “Will you need time off for religious holidays?”
Record of Offences
❌ “Have you ever been arrested?” ❌ “Do you have a criminal record?” (Instead, ask: Have you ever been convicted of a criminal offence for which you have not received a pardon?)
Best Practices for Employers
To avoid legal pitfalls and ensure compliance with the Ontario Human Rights Code, employers should:
- Use a Standardized Interview Process: Prepare structured interview questions that focus on job-related qualifications and competencies.
- Train Hiring Managers: Educate all interviewers on appropriate and inappropriate questions to prevent unintentional discrimination.
- Avoid Small Talk that Touches on Protected Grounds: Casual questions about a candidate’s background, family, or personal life can lead to unintended legal risks.
- Frame Questions Around Job Duties: Ensure all questions are directly related to the role’s responsibilities and requirements.
- Document the Interview Process: Keep records of interview questions and responses to demonstrate compliance if a human rights complaint is filed.
