Starbucks Comes to York. Is it violating the Human Rights Code?
With the big news that Starbucks has just joined Tim Hortons and Second Cup on the York campus, I thought it would be useful to reflect on a post I did two years ago entitled Starbucks and the Discriminatory Application Form.
In that post, I noted that the standard Starbucks application form likely violated Section 23 of the Ontario Human Rights Code because it requests information that employers are not permitted to request in an application form. Section 23(2) says this about job application forms:
The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.
That section means, in essence, an employer cannot include questions on an application form that would tend to disclose to the employer that the applicant is a member of a group that is protected under Section 5. In other words, questions that will disclose to an employer: an applicant’s religion, the presence of a physical or mental disability, ethnicity, place of origin, age, marital status, family status, record of offence, or race are unlawful.
In the earlier post, I reviewed the Starbucks application form question by question against this law. A couple of questions raised my eyebrows. What do you think?
What is the name and address of your High School?
Leaving aside that this is completely irrelevant to whether you can make a latte, it is almost certainly an illegal question on a job application form. The Human Rights Commission’s manual on Hiring says so (see p. 7). Can you identify why? Think about whether the location and name of your high school might tend to identify anything about you that could relate to one of those prohibited grounds. What about your university? Do you think there is something about where you go to university that differentiates it from where you go to elementary or high school?
Are you able to work overtime?
The Employment Standards Act defines overtime as more than 44 hours in a week. Starbucks wants to know in its application form if you can work more than that. Do you think Starbucks will prefer applicants who check YES? Now look at the list of designated (protected) groups in Section 5 again. Can you think of how membership in one of those groups might tend to impede your ability to work overtime?
How about “family status”? Section 10 defines that as “the status of being in a parent and child relationship”. There is no doubt that someone who has children may have a harder time working 48 hours per week than a childless person, right? Does that mean that a question asking if someone can work more than 44 hours per week has an adverse effect on applicants with children? If so, then the question on the Starbucks application form is illegal. If not, then what exactly does it mean that an employer cannot include a question that indirectly classifies applicants on the basis that they have children?
Or, how about “disability”? Can you imagine someone with a disability who cannot work more than 8 hours at once? If so, then does a question asking if applicants can work more than 8 hours, or more than 44 hours in a week, tend to disadvantage or disqualify such a person?
What do you think? Is this question about overtime legal or illegal?
If a question about the ability to work overtime is not indirect discrimination, then why is that?
If anyone has a York Starbuck’s application form, or other job application form that you would like discussed on the blog, send it along to me.
Dennis Buchanan
September 13, 2011 at 9:37 pm
I do see your point…but I have reservations. Are you aware of any jurisprudence on points such as these?
First of all, it’s common to be able to glean more about racial and religious background from a person’s name than from their school…that’s not going to make the “Name” field on a job application unlawful. Asking a question with the potential to reveal something about a prohibited ground cannot, on that basis alone, violate s.23(2); I would argue that such a question doesn’t meet the criterion of actually (directly or indirectly) classifying or indicating qualifications on the basis of a prohibited ground.. There are any number of otherwise innocuous questions which could elicit unforeseen answers regarding prohibited grounds. “What was your previous employer?” “The Catholic Archdiocese of Lagos.” It’s a perfectly reasonable question, and with such an answer there simply exist a couple new facts of which the employer is aware yet prohibited from taking into account when reaching a hiring decision, along with myriad other facts which can easily be gleaned in an interview such as age, race, sex, place of origin, and marital status.
And, notwithstanding the Commission’s contention otherwise, I have a hard time accepting that employers are not permitted to ask what schools candidates have gone to – that would be akin to extending ‘prohibited ground’ status to educational institutions, with the result that Microsoft would be unable to differentiate between a computer science degree from the University of Waterloo and a degree from any schools with less-distinguished computer programs.
I simply can’t believe that s.23(2) would be that broad.
Consider the HRTO’s recent decision in Visic: “there is nothing improper about an employer requiring an employee to provide verification of employment-related documents, such as educational certificates”. If I reasonably require that my job candidates have high school educations (mind you, I do acknowledge that I can’t understand why Starbucks would), it seems I’d be entitled to request a copy of their diploma or transcript, which would, doubtless, carry the name and location of the school.
Moreover, while the jurisprudence I’ve seen doesn’t make it entirely clear what would constitute a prima facie case that a question “indirectly classifies or indicates qualifications by a prohibited ground of discrimination”, it does appear that a prima facie case leads to the secondary issue of what use the employer makes of the information. Consider the HTRO’s Thomson v. Selective Personnel decision, in which – upon finding a prima facie breach of s.23(2) – it looked to the employer to provide a “non-discriminatory explanation for the question’s inclusion”.
As for “Are you able to work overtime?”…I would suggest that, if that were an illegal question on the basis of its exclusion of potential candidates on the basis of family status, it could well be seen as illegal to advertise a position as being for full time hours only.
Or asking if a person is able to relocate, because people with certain family statuses are less likely to be able to do so. Or asking how much travel a candidate is willing to engage in.
That being said, for somebody with Code-related time commitments, I would expect a “yes” to the overtime question to be pretty meaningless: See the Qureshi case from the HRTO, in which the application included fields to indicate shift availability. The HRTO was not concerned about the question itself, as your interpretation of s.23(2) might suggest it would be, but – referencing s.23(2) as a guideline as to the applicable principles – concluded that Qureshi was entitled to not disclose his Friday prayer requirements at that stage.
I guess my point – long and drawn out though it is – is that these are complex issues, far moreso than “How old are you?”, “Are you married?”, “Do you have any kids?” – I’ve personally been asked all three in possible employment circumstances, by HR professionals and lawyers – or “Are you planning to get pregnant in the near future?” which I also know of lawyers having asked possible staff.
Doorey
September 14, 2011 at 11:58 am
Thanks Dennis, very thoughtful comments. As always. I read Qureshi, St. Hill v. VRM Investments, and Thompson v. Selective Personnel. In all of those cases, questions on application forms were found to violate the Code. You are correct that the Tribunal does sometimes follow their finding of the breach by saying things like “the employer could provide no non-discriminatory justification for the question.” I think that is an odd way of interpreting human rights legislation, which is supposed to be read broadly as protective legislation. It is very difficult to police section 23(2) if the legality of a question depends on the employer’s explanation of why it asks the question, which will only become known at a hearing of a complaint. It means the identical question can be lawful in one workplace, and unlawful in another. I don’t read section 23(2) as intending that outcome. The law should have some certainty.
Qureshi seems to say, as you note, that an applicant need not disclose truthfully on an application form information that Section 23(2) does not permit the employer to ask on the application form in the first place. Does this mean that a disabled worker who cannot work “overtime’ due to a bad back should just check “yes” to the question about whether she can do so? That way she may get hired, and when asked to work OT, she can refuse or ask for accommodation. That seems like a devious way of getting around the question. Or the law could ban the question in the first place, which I actually think it does.
Great topic though, thanks for your valuable input. I may try to summarize all of these cases in a separate entry soon. Cheers, David
Angus Duff
September 14, 2011 at 10:34 pm
David,
I have to say, you have given me food for thought. And after careful reflection, I have come to think that maybe they are in violation, and maybe they aren’t. The sad part is, I think that whether they are or are not in violation of the code may actually be irrelevant.
Let me explain – the code fails to address the single “trump card” which permits employers to hire whomever they choose – even if such selection processes are blatant forms of descrimination, in direct contravention of the code and hiring guide.
What is the discrimination trump card? “Relevant Work Experience”
Selection based on “relevant work experience” provides the justification for the hire. When the employer has many applicants who are qualified for the position (which is usually the case except in extremely rare skilled trades) employers have the luxury of selecting the person with the best “relevant work experience”. Engineer in India – sorry, not relevant. Doctor in Germany, sorry not relevant. Person just like me working around the corner – relevant.
The fundamental question is, can we legislate subjectivity? If you have 10 candidates apply for the job, all with the skills for the job, can you legislate how to pick the best person for the job. Unfortunately – I don’t think so.
By the way, once we figure out how to address descriminatory hiring – maybe we can talk about systemic discrimination such as medical and legal self-governance which block foreigners from practicing in Canada, or whether seniority provisions in collective agreements are in conflict with human rights?
Matt
October 25, 2011 at 4:07 pm
David,
By your logic would it then be discriminatory for Starbucks to require applicants to provide their home address on the application? Surely one’s home address could identify the very same characteristics (ie: religion or ethnicity) that the address and name of a high school would. Would you then go on to say that by asking an applicant’s home address Starbucks is differentiating between candidates based on prohibited grounds?
Doorey
October 26, 2011 at 11:36 am
Thanks Matt. Your are correct of course. Home address, even someone’s name can disclose their inclusion in a designated group. I could point out that a job application form doesn’t require a prospective employer to know where someone lives or what high school they went to, because it is irrelevant. But I take your point, and I agree with it.
The point I’m trying to make to my law students is that the language in Section 23(2) is pretty clear: if a question on a job application form could indirectly disclose to the employer that someone is an designated category, then it is prohibited. Your point is that “it can’t actually mean that”, because then it would ban all sorts of questions you’d expect an employer to ask on the form. If you are right, then how does the Tribunal decide what questions can and cannot be asked? How do my students know? The point of my blog entry is to teach that statutes do not always tell you a clear answer, and that adjudicators must try to make sense of the language as they apply it on a case by case basis.
We might agree that the following question would violate Section 23(2): “Can you stand for 8 hours while holding a 30 pound bag?” because it would disclose a person’s disability.
But you take issue with the claim of the Human Rights Commission that asking an applicant where they went to high school is also a violation of s. 23(2). Both questions might disclose the applicant’s membership in a designated group.
What is it that makes the first question unlawful, and the second lawful?