Permissible Pre-Employment Queries – Canada

Throughout history, there are many examples of human beings' poor treatment of others. In the employment sense, the main issue of poor treatment is discrimination. Obviously, discrimination is not confined to the dusty pages of history books. It is still necessary to prevent some people from dismissing individuals based on stereotypical and/or unfair notions of ability and suitability; therefore, rules have been put in place to protect potential employees.

But a side effect of these rules is that people become unable, and/or afraid, to show genuine interest or ask some relevant questions, for fear these questions will be misconstrued as discrimination. And, sometimes, these rules prevent the interviewer from exploring issues that could reasonably be deciding factors in selecting the person who is best for the company, hospital, or school.

And this is a complicated area. For instance, some questions are not permissible to ask on an application but are permissible to ask in an interview. And there are some questions that can be asked – but only if phrased a certain way.

In Canada, appropriate questions are determined by both federal and provincial human rights codes. As a result, rules can vary slightly from province to province. So what can and cannot be asked on a job application and in a job interview in Canada?

1. Query Regarding: Age

You can be asked "are you aged between 18 and 65." If the answer is "no," you are not protected (for employment purposes) from discrimination. However, if your answer is "no," you can be asked your specific age. Therefore, if you are 17, answering "I'm 17 but will be 18 in two weeks," will be to your advantage.

Also, there are other situations where age discrimination is allowed. The obvious example is a casting director wanting an actor of a certain age. The other example, though it probably would not occur in healthcare, involves work through a service organization (defined as religious, philanthropic, educational, fraternal, or social in nature, serving mostly the interests of certain age groups). These organizations may discriminate if age is a reasonable and genuine requirement for the job.

(And, therefore, you cannot be asked for a document like a driver's license, since it would show age and sex. If driving is an essential requirement of the job, a copy of your license can be requested after a conditional offer of employment.)

2. Query Regarding: Height/Weight

Can be asked if essentially related to the performance of the job.

3. Query Regarding: Photo

Obviously anyone applying for a position in the performance arts will have to provide a photo.

After being hired, it is permissible to ask for a photo.

4. Query Regarding: Citizenship/Place of Origin/Ethnic Origin/Race/Colour/Ancestry

Since most jobs require that one be a citizen, landed immigrant, permanent resident, etc., you can be asked: "Are you legally entitled to work in Canada?"

While an employer cannot ask about your "Canadian experience," they can require that you have proper certification or licensure to work in the job in Canada.

Also, there are other situations where racial/ethnic discrimination is allowed. The obvious example, as above, is a casting director wanting an actor of a certain ethnic background. And the other example, though it probably would not occur in healthcare, involves work through a service organization (defined as religious, philanthropic, educational, fraternal or social in nature, serving mostly the interests of certain age groups). These organizations may discriminate if a particular background is a reasonable and genuine requirement for the job.

Please note: In some cases, ethnic/cultural background is obvious in an interview. Try not to be offended if someone (awkwardly or otherwise) asks about your name or other languages you speak. This line of questioning may not be a way to single you out as ethnic; it may very well be that they are interested in you and/or that having another language will give you points another applicant doesn't have.

An odd situation reported to us from the UK: I recently interviewed pharmacists in London, England. Several reported that, due to the fact that members of the European Union (EU) are allowed to work across borders without discrimination, they were experiencing a situation wherein pharmacists from certain EU member countries were working in England, despite the fact that their English was extremely poor. Meanwhile, pharmacists from an African country (a Commonwealth nation), where pharmacists are educated in English and complete a parallel pharmacy program, were having great difficulty obtaining visas and positions.

Two comments on the school issue:

1. While the goal in not asking for locations of schools is to protect people from discrimination based on country of origin, most healthcare jobs (e.g., nursing, medicine), require Canadian registration/certification anyway, so the location of the school is unimportant.
2. Not knowing which school a person went to prevents the employer from knowing, until much later in the hiring process, if someone has a fake degree from a non-recognized, non-accredited institution.

Also cannot be asked:

Can be asked:

5. Query Regarding: Creed/Religion

An employer can ask if you are available to work all shifts (including weekends), or, as in a hospital, if you would be able to work 365 days (meaning any day, but not all days, of course) per year.

If you say no, they may ask how your (religious) needs may be met.

These needs must be met, unless they would cause "undue hardship" to the employer. Undue hardship is a slippery issue – it varies depending on the situation and is different in every workplace. Generally, the phrase refers to situations where accommodating you would result in unbearable cost, serious disruption to the operation of a business, or other similar serious issues for the employer.

Questions about religion are allowed if the employer is a special service organization (i.e., one that is religious, philanthropic, educational, fraternal or social in nature and serves mostly the interests of a particular group), serving individuals of a specific religion. Employers can hire persons based on their religion provided that being of that particular religion is a reasonable and genuine requirement of the job. A common example would be Catholic schools in Ontario.

And, at an interview, an applicant may request accommodation (for example, certain days off for religious holidays or permission to wear a head covering).

6. Query Regarding: Disability and Medical and/or Psychological Issues.

An applicant may discuss their disability at an interview.

An employer may ask about the applicant's accommodation needs and the applicant's ability to perform the essential duties of the job. Gratuitous questions are not permitted.

The Saskatchewan Human Rights Commission gives the following permissible scenario. An employer can ask: "Do you have a disability, which will affect your ability to perform any of the functions of the job for which you have applied?" If you answer "yes," the employer should ask, "What functions can you not perform and what accommodations could be made, which would allow you to do the work adequately?"

Unless a disability makes someone incapable of performing the essential duties of a job, or the disability threatens the safety/property of others, or the accommodations would cause undue hardship (see note above under creed/religion), disabled persons cannot be discriminated against.

But in some cases, individuals without a disability may be discriminated against, e.g., service organizations (those that are religious, philanthropic, educational, fraternal or social in nature and that serve mostly the interests of a particular group), that serve individuals with a specific disability may discriminate if having a disability is a reasonable and genuine requirement of the job.

Medical assessments to determine/verify your ability to perform the essential duties of a job should only take place after a conditional offer of employment is made.

Employers sometimes use tests that assess psychological or personality profiles of job applicants. The use of these and other behaviour profiles as part of a hiring process may raise human rights issues. If behavioural/psychological testing is used as a predictive tool, it can be subject to a human rights code complaint. These tests should only be used to assess someone's ability to do a job.

Regarding drug and alcohol testing: While a body like the Ontario Human Rights Commission states that "it is a legitimate goal for employers to have an impairment-free workplace," they remind us that drug and alcohol dependencies are a form of disability under the human rights code, and, therefore, cannot be grounds for discrimination. This situation is a conundrum. Of course, the real problem is not an individual undergoing treatment, counseling, a 12-step process, and is sober or "clean": the problem is someone who is actively abusing substances. The commission, however, insists that employers "must be able to prove that requirements in drug or alcohol testing policies are directly connected to job performance." The real question is when is coming to work impaired, or unable to work due to impairment, not directly related to job performance?

7. Query Regarding: Sex and Sexual Orientation

If the employer is a special service organization (i.e., one that is religious, philanthropic, educational, fraternal, or social in nature and serves mostly the interests of a particular group) that serves individuals of a particular sex or sexual orientation, the organization is permitted to hire persons based on sex or sexual orientation, provided that their orientation is a reasonable and genuine requirement of the job.

In healthcare, discrimination may occur, for example, in a home care setting, when a patient is not comfortable having a member of the opposite sex caring for them.

8. Query Regarding: Family Status and Marital Status

You can be asked, if relevant to the job, whether you are "free to travel or relocate."

Once you are hired, you can be asked for a next-of-kin in case of emergency.

Once given a conditional offer of employment, you can be asked whether you have had previous names in order to check on previously held jobs or on credentials.

And (though this would also not likely pertain to healthcare workers) since employers may implement programs to relieve economic hardship or disadvantage (e.g., single parents), inquiries about membership in a group experiencing hardship or disadvantage may be permissible.

And questions about these areas are allowed if the employer is a special service organization (i.e., one that is religious, philanthropic, educational, fraternal, or social in nature and serves mostly the interests of a particular group), that serves individuals of a particular marital status, sexual orientation, etc. These organizations are permitted to hire persons based on such criteria provided that it is a reasonable and genuine requirement of the job.

9. Query Regarding: Pregnancy/Children

You can be asked, if it is relevant to the job, whether you are free to travel or relocate.

If the query relates to a reasonable and genuine job requirement and if the employer can show that people with children cannot be accommodated because of undue hardship (see above, re: Creed/Religion), questions about pregnancy or family plans can be asked.

A pregnant woman may have special needs linked to her unborn child's health, and she must be accommodated unless it becomes an issue of undue hardship for the employer.

10. Query Regarding: Record of Offences

You can be asked whether you are bondable.

Also, you can be asked, "Have you ever been convicted of a criminal offence for which a pardon has not been granted?"

You cannot be asked about pardoned offences or time in jail, since you may have spent time in jail but have been cleared of charges.

11. Query Regarding: Union Membership

You cannot be asked this question unless the employer has a collective agreement with a union regarding only hiring people who are union members.

12. Query Regarding: Grades

Yes, you can be asked about your grades.

When you are applying for work abroad

The rules are different when you apply for work abroad. Other countries have different attitudes and policies and do not necessarily follow the same practices of what is and is not a permissible or reasonable question. For example, if you apply to work in Saudi Arabia, you will be asked your age, weight, marital status, number of children, and religion. You will have to fill in medical questionnaires and submit photos. You will also require a complete physical examination before relocating. Look at the situation from their perspective: the employers are paying a fee to a recruitment agency; they are paying to import a worker, thus covering airfare, accommodations, healthcare, and salary, and, in the case of married-status contracts, airfare, accommodations, and healthcare for a spouse and dependent children (and education for those children). The proposition is extremely expensive for the foreign employer, so they have to reduce the chances of an individual not being able to complete their contract because of preexisting health conditions or other problems.

What to do if you are asked something not askable

So what if you are asked something like: "Where are you from?" Don't jump to conclusions. Remember: not everyone is seeking to discriminate against you. The interviewer may be trying to break the ice. Or they may be trying to get a picture of you as a person outside of your career to see how well you would fit into their team. Some people are simply interested. Maybe the person who asks you if you are from a certain foreign country is asking because they used to live there themselves and want to reminisce for a moment. Maybe their mother's best friend has the same accent as you have. And some people are new at interviewing and/or don't know what is appropriate.

How you react depends on many factors, personal and situational. Are you of a group that is often discriminated against? Have you applied unsuccessfully for several jobs you felt you were qualified for? Is the interview going well or is there tension? Are you interested in the job? (If you confront the person about an inappropriate question, you may lose your chance at the job. If you lose your chance at the job, you may want to bring an accusation before the provincial human rights commission – do you want to do this? Perhaps you do.) Of course, if you really feel the employer has a lot of issues (e.g., sexual orientation, race, children), you may not want to work there anyway. What is your feeling about the interviewer – do you sense that s/he is genuinely interested in you, or does s/he seem to have ulterior motives with the questions?

And what is being asked? There are overt questions and underlying questions. For example, if someone asks you about marital status – are they just asking because they noticed an interesting ring on your finger? And what do they consider the "best" answer? Would they prefer a married person, since there will be another person to share household responsibilities, thus freeing you up to do overtime? Or would they prefer a single person who doesn't have a family and so could do more overtime?

If someone asks something inappropriate, one option is to play innocent: "I'm not sure how to answer your question. Could you please explain how it's relevant to the position I'm applying for?" Keep in mind, such a response may very well cause tension. In response, the employer may drop the question – or they may be able to show how the question is appropriate and relates to a reasonable qualification. For example, if it is a question about ethnicity, they may suspect that your ethnic background is the same as a large proportion of their patients, which is beneficial, and want to confirm this. Or they may be trying to see how you would react to a patient saying something inappropriate.

Another option is to address the hidden question, e.g., if asked a question about having children, and you do, you could state that your family life has never interfered with your ability to do a job. Or, if you don't have children, you could state that at this point in your life, children are not in your plans. Do not lie. Lying won't help you.

You could also turn the question back on the interviewer. If they ask whether you have children, you could respond and ask whether they have any. This tactic will certainly gain rapport points if the interviewer is trying to assess your personality.

For Further Information: • A Guide to Screening and Selection in Employment (Canadian Human Rights Commission), • Human Rights Commission Newfoundland & Labrador, • Nova Scotia Human Rights Act, • New Brunswick Human Rights Act, • Prince Edward Island Human Rights Act, • Quebec Human Rights Commission, • A Human Rights Guide (Ontario), • Manitoba Human Rights Code, • Employer's Guide to Application Forms and Interviews under The Saskatchewan Human Rights Code, • Pre-Employment Inquiries (Alberta Human Rights Commission), • British Columbia Human Rights Code, • Yukon Human Rights Act, • Northwest Territories Human Rights Commission, • Nunavut does not have an HRC webpage at this time.

Discuss This Article

Have something you'd like to say? Tell us what you think! Read and post comments for this article.

Find a Job

Choose your career:

MedHunters is the world's biggest healthcare job board. Our job directory has 18,208 jobs with 2,536 hospitals and other direct employers.

We want you to find your next job on MedHunters. Need Help? Call us at 1-888-884-8242, email us at info@medhunters.com or sign up now.