ensure that their job postings, applications
and interviews do not classify applicants
by a prohibited ground of discrimination.
Questions that should not be asked in
an interview include:
■■ Where are you from originally?
■■ Why is there a gap in your work
■■ Who do you live with?
■■ Have you ever been convicted of a
■■ Do you have any disabilities that may
affect your ability to do this job?
Employers must be careful not to include
in a job posting or application
that they are looking for applicants with
or without certain protected grounds,
such as age, gender or record of offences.
Employers should further ensure that its
hiring managers do not ask any questions
in interviews that may elicit a response
that would divulge information pertaining
to a protected ground of discrimination.
Even if there is no ill intent in asking such
EMPLOYERS MUST BE CAREFUL NOT
TO INCLUDE IN A JOB POSTING OR
APPLICATION THAT THEY ARE LOOKING
FOR APPLICANTS WITH OR WITHOUT
CERTAIN PROTECTED GROUNDS
questions, they will still amount to a violation
of the Code.
A breach of the Code will also occur
when documents that contain Code identifiers
are requested during the hiring
process, even when the documents are
not used for an improper purpose and are
requested for a BFOR. Accordingly, employers
should avoid asking for documents
that disclose information about a protected
ground, such as driver’s licenses, unless
they clearly advise the applicants to black
out that information, such as age and
place of origin. As a best practice, however,
unless there is a strong reason to ask
for such documents in advance, employers
should wait until they have made a conditional
offer of employment before asking
for documents that disclose information
about a protected ground.
Employers need to be mindful of the
Code and any answers to questions during
the hiring process that could disclose
information about a protected ground. A
failure to do so will not only result in technical
breaches of the Code, but also open
an employer up to liability from candidates
who have disclosed Code identifiers
and not been hired for the position. ■
Todd Weisberg is an associate with the law
firm Shields O’Donnell MacKillop LLP.
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18 ❚ SEPTEMBER 2016 ❚ HR PROFESSIONAL