Illegal questions.

• Author: Bowal, Peter
• Position: Employment Law

Canadian human rights legislation stringently forbids an employer from taking into account gender, ethnic origin and race, age (with a few qualifications), marital and family status, religion, source of income, sexual orientation, and disability in any employment-related decision. Unless any of these prohibited grounds of discrimination can be shown to be directly related to job performance, these personal attributes can never be a factor in any employment decision.

This is the essence of equality rights in employment law. The rule applies equally to private and public sector employers. The law further reasons that if an employer must be blind to these attributes in all employment-related decisions, it should not be able to stipulate such attributes in job advertisements or to ask for disclosure of these attributes on application forms or orally in job interviews.

For example, section 8(1) of Alberta's Human Rights, Citizenship and Multiculturalism Act is typical of most provincial human rights legislation in this regard. It reads: "No person shall use or circulate any form of application for employment or publish any advertisement in connection with employment or prospective employment or make any written or oral inquiry of an applicant ... that expresses ... any limitation, specification or preference ... or that requires an applicant to furnish any information concerning race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income or family status of that person or of any other person." The theory in barring employer inquiries is that if the employer cannot ask the employee about these attributes, it will possess no knowledge of them and, accordingly, it cannot illegally discriminate by considering them.

Even informal banter over dinner about an applicant's marital partner, children, and age is ill-advised. Inquiries about what an applicant did in previous jobs should reflect more on qualifications than on age. One should be careful about stereotypes about another's religious practices to avoid such assertions as, "We are a very collegial group. Often we eat out together, but you wouldn't be able to do that." Or "the fitness centre is excellent, but I don't suppose you would go there."

An employer usually asks personal questions--not with malicious intent, but to inform a candidate about the workplace. If it wants a candidate to know about great local...