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Employers Can’t Ask an Applicant’s Age, and Volunteer Work is ‘Employment” under Human Rights Code

I wrote a post yesterday about a Human Rights Tribunal case finding that an employer who asks a job applicant, ‘where are you from?” violated Section 23 of the Code, even if the answer does not play into the hiring decision.   Another case was issued yesterday by the Tribunal dealing with Section 23.

It’s called Rocha v. Pardons and Waivers Canada.

Asking an Applicant Their Age is Violation of the Code

In this one, the employer asked the applicant, “How old are you?”.  This one’s easy, since ‘age’ is a prohibited ground and the question directly asked about it.  That’s a violation of Section 5 of the Code, because Section 23(2) says that any inquiry made of an applicant that ‘directly or indirectly classifies of indicates qualifications by a prohibited ground” is a violation of Section 5.

Although I think this is an easy case, clearly a breach of the Code, I would note that I have still seen job applications that ask people for their date of birth.  That’s illegal too.  Has an employer ever asked you for your age?

We learned from the case I discussed yesterday that asking an applicant their age would violate the Code even if the employer ignored the answer and had no improper motive for asking it.  In Rocha, the Tribunal ruled that the applicant was actually denied the job because of her age, which she had told the employer was 45.  Therefore, the decision to not hire her was also a violation of Section 5′s prohibition on age discrimination.  The Tribunal said it needed more information to determine the remedy.

Volunteer Work is Still “Employment” Under the Code

The other interesting part of this case was that the Tribunal ruled that unpaid, voluntary work is still ‘employment’ for the purposes of the Code.  That issue arose because the applicant had offered to work 6 weeks for ‘free’.  The Tribunal noted that Section 5 prohibits discrimination “with respect to employment“, which is an extremely broad phrase.  The Tribunal ruled that the Code covered the situation in this case for two reasons:

(1)   The applicant intended to work for pay after an initial 6 week ‘volunteer’ period, so the application process was still ‘with respect to employment’; and

(2), ‘volunteer employment’ is nevertheless covered by the Code anyways.

That’s interesting, isn’t it?  It clarifies that all those unpaid interns and volunteers can make human rights complaints, even if they would not be classified as ‘employees’ under employment standards legislation.

Can you think of any scenarios in which an unpaid intern might want to bring a Human Rights Code complaint?

Are you surprised to learn that it’s illegal to ask a job applicant their age or date of birth?

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11 Responses to Employers Can’t Ask an Applicant’s Age, and Volunteer Work is ‘Employment” under Human Rights Code

  1. Christopher Reply

    January 16, 2013 at 12:43 pm

    I’d only point out that asking an employee’s age at the interview stage can be allowable if age is an allowable ground of discrimination under another part of the Code e.g. they have to be certain age to work in a bar etc. Earlier in the process of course the Employer can’t ask about it.

  2. R.Morton Reply

    January 4, 2014 at 12:16 pm

    The OSFI website requires that all job applications are submitted via their website. In order to do this one must register to gain access. One of the questions that a person is required to answer is about age:
    *the last digit of the year of birth
    *month of birth
    *date of birth

    This is asking the age of a person. How is this legal?

  3. Anonymous Reply

    January 8, 2014 at 5:46 am

    R.Morton – Doesn’t sound like they are actually asking your age, or anything that will let them calculate your age. If the last digit of your year of birth is 7… could be born in 97, 87, 77, 67… etc.

    Nothing illegal there.

  4. dave robinson Reply

    January 3, 2015 at 3:39 pm

    Why can they ask what years you went to high school on app a. Not hard to calculate age

    • Doorey Reply

      January 5, 2015 at 3:38 pm

      Dave, the Human Rights Commission takes the position that an application can not ask about high school (name of school or year of attendance), but I have never seen a case. Very few applicants ever file complaints against job application forms, so there’s little case law.

  5. Dan McGarry Reply

    January 5, 2015 at 4:42 pm

    David,

    As you correctly stated OHRC guidelines state that the application/applicant should not be asked about the name, location or date of attendance regarding high school. As it may be a BFOR, the applicant may be asked if they have completed high school.

    “Information about a person’s education at this stage should be limited to information about the degree or level of education, professional credentials, diplomas, etc. received. Asking applicants to provide the names of schools or copies of diplomas, certificates and professional credentials may indicate place of origin. Therefore, it is advisable not to collect such information until after making a conditional offer of employment.”

    I may be incorrect (and all too often am) but seem to remember that applications/applications should not ask about education below the high school level?

    It’s surprising that there are so few complaints regarding applications, particularly electronic ones as over the past year an alarming number have been brought to my attention (including some from organizations with relatively large Ontario operations) that have asked questions that do not appear to be in compliance with OHRC guidelines.

    One was fOR a very high profile Canadian ‘executive recruiting’ organization. The majority of the others were from organizations whose ownership and/or headquarters are U.S. based and they appear to have been using forms/sites developed in the U.S.A and simply transferred to their Ontario operations.

    Although not Human Rights related, we were made aware of a corporate site which required applicants for positions in Ontario to check that they agreed that if hired, that their employment was “at will”.

  6. Anonymous Reply

    October 14, 2015 at 11:27 pm

    Is this applied also to job sites online where a required field would be DOB in order to create an account?

  7. Summer Reply

    May 19, 2016 at 3:06 pm

    I recently apples for a position that asked for age even in the ad, Once i responded
    to the ad the employer asked my age again in the e-mail. I dont see how age is relevant
    for door to door sales.

  8. Nick Reply

    May 26, 2016 at 7:44 pm

    PetSmart requires you to be 17 years old, is it illegal for an interviewer to ask an applicant his age in this scenario?

    • Doorey Reply

      May 26, 2016 at 8:07 pm

      Nick, in Ontario, “age” is defined as 18 or older in the Human Rights Code, so the Code only regulates questions put to employees or applicants who are 18 or older.

  9. jc Reply

    September 20, 2017 at 9:21 pm

    Once one is hired, must one give one’s age if asked? By human resources, for example?

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