04 Sep As an employer, how do I avoid pre-employment discrimination in Ontario?
The intricate steps of the hiring process can be great for identifying the best possible candidates. Their applications are evaluated and screened, they commit to an interview (or many), they may have a mandatory test to complete prior or during an interview, their references are contacted, and their background check may be completed.
Yet, because there are so many steps involved, there is more room for employers to make mistakes. Employers may neglect to think about how certain methods could be considered unfair, or even, discriminatory. During the interview stage, discrimination may be one of the most challenging to control because it is in real time and may be conducted by several different people. When creating job posts, there is much more opportunity for drafting and ensuring the language and goals are appropriate for all applicants, whereas during the interview stage, there is more time and opportunity for mistakes.
It is possible for an applicant to sue an employer or company alleging discrimination prior to their employment. The applicant can file a claim indicating they have experienced pre-employment discrimination, which is experiencing unfair treatment at any point during the hiring process. The candidate can specify they’ve experienced discrimination during the interview process, and if denied from the position, could stipulate their answers were the reason they were rejected. If the interview included inappropriate questions about race, ethnicity, place of origin, citizenship, sex, sexual orientation, gender, age, pregnancy, number of children, marital status, disability, medical history, or religion; this is grounds for filing a pre-discrimination discrimination claim.
So, how can an employer avoid pre-employment discrimination claims during the interview process?
Include a detailed job description on the job post prior to the interview. Having a comprehensive job description creates a skill-focused application and interview process. The most important part about being the right candidate for a job is possessing the expertise, or skills to learn the expertise, required for the position. The hiring process should not be about anything else other than how well the potential employee can get the job done.
Second, it will be helpful to create a list of standardized questions that all interviewers must follow, rather than allowing them to ask questions on their own. Having a cohesive interview process can eliminate the chances of raising inappropriate questions altogether because it removes individual discretion. When drafting these questions, only include the questions pertaining to the job description you have outlined. Addressing any of the topics outlined above (race, ethnicity, citizenship, etc.) is grounds for a discrimination claim.
And lastly, once the standardized questions are created, every interviewer should participate in interview training. Even if you, the employer, are aware of what constitutes an illegal interview question, that does not mean your interviewers will. You or the company will still be liable for the illegal behaviour even if it is your interviewer that made the error. Further, ensure that interview training is also standardized and a course every new interviewer will complete before they start. Ten years down the line if a new interviewer engages in illegal questioning, you will be just as liable for the discriminatory behaviour as you are now.
If you have a pre-employment discrimination claim filed against you or require assistance drafting hiring policies that meet all legal requirements, please contact KCY at LAW by filling in an online consultation request or contact us by phone at 905-639-0999 to book your consultation today.