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Dan Michaluk (Hicks Morley) on Employers Requiring Facebook Passwords

This is probably my final word on the issue of whether employer’s can demand Facebook passwords from job applicants.  However, there is a new very interesting post by Hicks Morley’s Dan Michaluk worthy of comment.  It raises a point I have asked about before:  What does Section 23(2) of the Ontario Human Rights Code (which deals with questions asked in the recruitment process) add to the Code’s treatment of discrimination in employment that is not already covered by the general ban on employment discrimination in Section 5?

To summarize the debate, I argued recently that it is a violation of the Human Rights Code for an employer to require job applicants to provide their secret passwords to allow the employer to read information not publicly available (I did not say it was a violation of the Code for the employer to do a web-search of publicly available information, since s. 23(2) deals only with employer requests for information).  In my view, this is akin to an employer asking for access to a databank about an applicant that will include information about their family status, marital status, sexual orientation, and religion, among other possible prohibited grounds of discrimination. I argued that, since Section 23(2) of the Code must be interpreted broadly and purposively given the Code’s objective of preventing discrimination in the hiring process, it was broad enough to prohibit employers from insisting on an applicant’s Facebook password.

The Human Rights Commission issued a statement last week advising employers that since demanding access to the password protected areas of Facebook would likely give employers access to this information, “the OHRC believes employers should not ask job applicants for access to information stored on social media or other online sites and that doing so could leave an employer open to a claim of discrimination under the Code.”

However, I noted that my interpretation of the Code is not one universally shared.  Some lawyers who represent employers have voiced strong disagreement with my position, which makes for an interesting and healthy debate. The most thorough review of the issue “from an employer’s prospective” comes from Hicks Morley lawyer Dan Michaluk on the firm’s All About Information blog. I have a lot of respect for Dan, so please read his take on the issue here. Dan discussed privacy law, which I did not, but he also takes me on in relation to the human rights angle.  Here is what he writes:

Second, with great respect to Professor Doorey (who I follow and whose commentary I appreciate greatly), the issue of compliance with anti-discrimination legislation is not clear. Professor Doorey relies on section 23(2) of the Ontario Human Rights Code. …

Though section 23(2) will often apply when an employer collects information associated with a protected personal characteristic, it is not a prohibition on the collection of information. An employer only violates section 23(2) if it “classifies” an employee by a protected personal characteristic or “indicates qualifications” by a reference to a protected personal characteristic. An employer who merely accesses a social media account that may contain information related to a protected personal characteristic in order to review the account for objective behaviors that raise legitimate concerns has neither classified an employee nor indicated job qualifications by reference to a protected personal characteristic. Both Professor Doorey and the Ontario Human Rights Commission seem to conflate access to information with collection and use of information, yet the language of the statute makes clear that only use of information for certain purposes is prohibited.

What do you think of Dan’s take on Section 23?

Although I concede that insofar as I said the answer is “clear”, I might be over-stating it–what I mean is it seems clear to me. I remain unconvinced  by Dan’s argument (which others have also made), but these are the two sides of the argument for sure. As I’ve noted before, I have been wrong before.  Just ask my daughter.  It may take a Tribunal or court decision to resolve it.

What is the Purpose of Section 23(2) of the Code if not to Regulate the Elicitation of Information About Prohibited Grounds?

The difficulty I have with the argument Dan makes is that renders Section 23(2) essentially meaningless in terms of its governance of questions during the recruitment process.  By my reading of Dan’s argument (and Dan or someone else can correct me if I am misreading), an employer is free under the Code to ask an applicant what their religion is, if they are gay, whether they are married, or have children, as long as they do not use that information in making any employment-related decisions. It doesn’t matter how employers collect information from applicants; what matters is how they use the information they collect.  If that is the case, they I am at a loss to see what purpose Section 23(2) serves at all, since it is already a violation of Section 5 for an employer to rely on or “use” any of this information in making a decision about employment.

In fact, there are a lot of Tribunal decisions that find it is a violation of section 23(2) to ask job applicants questions that will elicit information about prohibited grounds.  A very quick search found these recent examples:

Kartuzova v. HMA Pharmacy (asking a question about applicant’s daughter and husband is a violation of s. 23(2))

Thompson v. Selective Personnel (asking applicant if they have ever been under psychiatric care)

Streeter v HR Technologies (asking about religion)

And so on.

The point is that s. 23(2) is not just about the use of prohibited information (which is covered already by s. 5), it is about questions that are asked that help the employer collect the information.  That is how Section 23(2) adds something new to the Code not already covered by the broad-sweeping ban on discrimination in employment already covered by Section 5.

Note that an employer can violate section 23(2) by asking questions that elicit information about a prohibited ground, even if their ultimate hiring decision is not tainted by the information they recover from the illegal inquiry.   It is a violation of s. 23(2) for an employer to ask an applicant if they are married, even if the answer given is not relied upon by the employer in any way.  That means to me that section 23 deals with the manner in which information about prohibited grounds is collected in the recruitment process, and not how that information is or is not ultimately put to use by the employer. My point was that if an employer cannot attempt to elicit information in an interview about whether an applicant is married, then why would the same law permit the employer to demand a secret password that will provide the employer with that information?

But I could still be persuaded otherwise.  So I would ask those of you who interpret Section 23(2) as prohibiting the use of information relating to prohibited grounds, and not the collection of that information, to explain what new or additional behaviour Section 23(2) prohibits that is not already prohibited by Section 5?

In other words, given that  Section 23(2) must be interpreted broadly and purposively as a measure to protect against discrimination in the recruitment process, what is its purpose?

It’s a very interesting debate, and all views and opinions are greatly appreciated.  Cheers.

Socialize

One Response to Dan Michaluk (Hicks Morley) on Employers Requiring Facebook Passwords

  1. Ian H Reply

    March 26, 2012 at 7:03 pm

    It appears that section 23(2) is concerned with the employer’s REASON or MOTIVATION for asking an interview question. In particular, employers are not permitted to ask interview questions that are “directly or indirectly” designed to intentionally solicit Code-related information.

    There is no violation, for example, when an employer asks where a candidate went to school in order to get a better understanding of her qualifications. On the other hand, an employer that asks the same question in a backhanded attempt to determine the nationality of the candidate has likely run afoul of the Code.

    On this analysis, it is not a prima facie Code violation for an employer to demand a candidate’s Facebook password. However, the employer will be required to present a convincing REASON as to why the Facebook password is required. For instance, an employer might want to hire a candidate with exceptional “networking” skills, and the employer requested the password in order to see how many “friends” the candidate has on Facebook (while ignoring all other Code-related information).

    I would argue that section 23(2) is not concerned with the “use” of information. Nor is it concerned with the mere “collection” of information. Rather, it is concerned with the REASON or MOTIVATION of the employer when it asks interview questions that may (or may not) reveal Code-related information.

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