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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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3 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.

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