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Must a Job Applicant Disclose Their Religion During the Recruitment Process?

A job application form asks for the applicant’s religion.  Unlawful?

What if the application doesn’t ask directly about religion, but it demands information that will require the applicant to disclose her religion to the employer?  For example, what if the application form includes this question:

“Are you available to work on Friday, Saturday, and Sunday?”

Imagine now that my religion forbids me to work on one of those days, or demands that I take time off on those days to attend religious service.  Now I am faced with a dilemma.

HR-tribunal3-150x137If I simply answer “no” to the question, I will probably not get the job. The employer will prefer an applicant who can work whenever they’re needed.  If I answer no, but then scribble on the application form that it is due to my religion, I have disclosed my religion to the employer, having felt I had no choice because of the question on the application form.  A third alternative is that I just lie, and say that I am available to work all of the shifts, figuring if I get the job, I can request the time off then.

Which response does Ontario law encourage me to take?

What does the law tells us should happen in this scenario?

Let’s start with the statutory language found in the Human Rights Code.  Section 5 says that it’s unlawful to discriminate in employment on the basis of various grounds, including religion and disability.  Then Section 23 specifically regulates job ads, application forms, and interviews:

23.  (1)  The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination. 

Application for employment

(2)  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

Questions at interview

(3)  Nothing in subsection (2) precludes the asking of questions at a personal employment interview concerning a prohibited ground of discrimination where discrimination on such ground is permitted under this Act.

Section 23(1) deals with a job ad, and says it’s unlawful to post an ad that ‘directly or indirectly classifies qualifications by a prohibited ground.  That language confuses people. Everyone seems to agree that it means you can’t post an ad that says “men” wanted or “Catholics wanted”.  So in Wedley v. Northview Meadow Cooperative Homes, an ad seeking “maintenance men” violated s. 23(1).  But what if the ad said instead:  ”Wanted:  maintenance person who can lift 80 pounds”?  There are human rights cases that have found that heavy lifting requirements indirectly discriminate against women (and the disabled), since they are less likely to be able to meet the standard than able bodied men.  Therefore, it would seem to follow that a job ad that lists as a requirement the ability to lift 80 pounds would ‘indirectly’ classify the job by the prohibited ground of sex (and disability), and would be unlawful.

Returning now to the religion example, can a job ad ask applicants if they can work specific days, knowing that some applicants may not be able to work those days due to their religious beliefs?  I think not.  Listing a requirement in a job ad that people be able to work Saturdays (or some other day) is including a requirement that indirectly indicates qualifications by religion.  Only people whose religion permits them to work Saturdays are qualified to apply.  Section 23(1) prohibits that sort of ad.

But Section 23(2) then deals with application forms and oral inquiries, and when read with Section 23(3), gives the employer more latitude to ask questions that might require the applicant to disclose their religion.  Those two sections together say that an employer can ask applicants questions that would tend to disclose information about prohibited grounds, but only if discrimination on those grounds is permitted by the Code.  Sometimes, discrimination on the basis of religion is permitted.

For example, Section 11 allows a workplace rule or requirement to discriminate against applicants on the basis of their religion when the rule or requirement is ‘reasonable and bona fide in the circumstances”, and it is not possible to accommodate the person’s religion without undue hardship.  Does that mean that an employer can ask an applicant in an application form or oral inquiry if they can work Saturdays, since discrimination against a person who can’t work on Saturdays because of their religion  may be “permitted under the Act”?

Recall the dilemma we opened with.  How should a job applicant respond to an inquiry during the recruitment process about their availability to work on a day forbidden by their religion?  Consider two cases.

An Applicant Needn’t Respond Truthfully to a Question About Availability on an Application Form?

In Qureshi v. G4S Security, the employer’s job application form asked applicants to identify whether they could work various shifts.  Qureshi, a Muslim, responded on the form that he was available for all shifts.  In fact, he would need about 1 hour off on Fridays for prayer, which he did not disclose on the form. He was invited to training, but released when he informed the employer he would need the prayer time on Fridays.  One of the employer’s arguments was that Qureshi had been dishonest in failing to disclose in the application form that he was not available to work Friday afternoons.

The Tribunal rejected that argument, apparently on the basis that the employer could not ask about religion on a job application form, and therefore, an applicant was not required to answer a question on the form that would disclose their religion.  After noting s. 23(2), the Tribunal said this:

 In view of the prohibition in this section, it is counter-intuitive to suggest that there is a positive duty on the part of a job applicant to reveal information to the prospective employer that may classify the applicant by a prohibited ground of discrimination.

So does this mean that an employee need not answer truthfully if asked in a job application about their inability to work shifts that conflict with their religious beliefs?  It appears to.  In G4S Security, the employee did not disclose the conflict until right before it came up for the first time, during the training process.  The Tribunal ruled that this approach was fine, and the employer violated the Code by failing to explore accommodation once it was informed of the religious conflict.

Is a Question About Availability Permissible as Long as the Employer Doesn’t “Seek” to Identify Applicant’s Religion?

More recently, in a decision called Widdis v. Desjardins Group, the Tribunal said that it was not a violation of Section 23(2) for an employer to ask whether a job applicant could work Saturdays.  The question was posed during a ‘Pre-Screen” verbal interview of applicants, and the applicant responded that she was a 7th Day Adventist and was unable to work Saturdays.  She didn’t get the job, and the Tribunal ultimately found that this was due to her religion, and the employer had failed to show that it could not have accommodated her need to avoid Saturday shifts.  However, the Tribunal had no problem with question about work availability.

Read what the Tribunal said:

 I have considered the applicant’s submissions and I cannot accept that making an oral inquiry about the availability to work of a prospective employee is a violation of section 23(2) of the Code. …   Questions with respect to an applicant’s availability to work are legitimate questions which do not seek to identify applicants either, directly or indirectly by a prohibited ground of discrimination. In this case, there is no evidence to support or infer that the respondent was asking whether the applicant could work on Saturdays in order to classify the applicant, either directly or indirectly, by her creed.

Here, the Tribunal reads an intent requirement into Section 23(2).  The employer did not violate Section 23(2) by asking about availability to work on specific days because when it asked the question, it was not “seeking” to learn about the applicant’s religion.  Do you think that is the correct approach?   That’s an interesting interpretation of the Code, since in the case of ‘indirect” discrimination, there is hardly ever an intention to discriminate or to seek information about prohibited grounds.  It is the effect of the requirements and rules that matters, not the intention of the employer in asking the question.

I think the outcome in Widdis was correct, but that the reasoning to get there was wrong.   Suggesting that it is the employer’s intent in asking the question that matters just confuses the issue. The reason that it was not a violation of Section 23(2) for the employer to ask if the applicant could work Saturdays is that section 23(3) allows that question in a job interview, such as was taking place in Widdis. An employer can ask in a job interview about availability to work because it can refuse to hire someone who can’t work certain days, if the requirement to work those days is bona fide and reasonable, and there’s no way to accommodate the person’s religion.  The key issue is whether the employer exhausts all possibilities for accommodation before refusing the applicant based on the inability to work that days in question.

Questions for Discussion

But what to make of the Qureshi decision?  There the Tribunal suggested that when an application form asks about availability to work on certain days, an applicant need not disclose a religious conflict.  

Do you think it makes a difference that the question was asked in an application form in  Qureshi and in an oral interview in Widdis?   Can you think of a reason why the Tribunal might have different concerns about these two scenarios?

Do you think that its odd that the model would permit an employer to ask a question about availability, and yet also allow an employee to answer untruthfully?

Can you think of way to design the job application form in a way that would reconcile these two decisions?

 

 

 

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8 Responses to Must a Job Applicant Disclose Their Religion During the Recruitment Process?

  1. Dennis Buchanan Reply

    September 17, 2013 at 5:47 pm

    “An employer can ask in a job application form or interview about availability to work because it can refuse to hire someone who can’t work certain days, if the requirement to work those days is bona fide and reasonable, and there’s no way to accommodate the person’s religion.”

    I’m not sure how you get quite there: s.23(3) permits inquiries at personal employment interviews on that basis…but there’s no such exemption for job application forms. Or job postings. Meaning that, had Widdis gone the other way on s.23, the result would be to prohibit even advertising a position as requiring certain hours (say, full-time), even assuming that the requirement itself would be justifiable.

    • admin Reply

      September 17, 2013 at 6:08 pm

      Dennis, you are correct, I misstated that point. I was referring to the Widdis case, where the inquiry was made in an oral interview. I agree with you that s. 23(3) doesn’t give an employer a defense to a claim that an application form indirectly discriminates contrary to Section 23(2) by requiring an applicant to list their availability to work on specific days. I’ve made an amendment to my original post. So, is your position that Section 23 doesn’t prohibit an employer from including a requirement to work specific days in a job ad, or asking in a job application form if applicants can work specific days?

  2. Dennis Buchanan Reply

    September 17, 2013 at 7:34 pm

    “So, is your position that Section 23 doesn’t prohibit an employer from including a requirement to work specific days in a job ad, or asking in a job application form if applicants can work specific days?”

    Generally speaking, yes, that would be my argument.

    However, between Qureshi and Widdis, it’s a bit of a minefield. The Tribunal in Widdis doesn’t clearly indicate how important the religious self-identification was – it finds as fact that she told the recruiter that she was a Seventh-Day Adventist and asked for accommodation – but I don’t think that’s particularly important. With her unavailability on Saturdays being linked to her religion, I suspect that it’s prima facie unlawful discrimination to deny her employment on the basis of her unavailability on Saturdays, regardless of whether or not they’re aware of the reason, by virtue of s.11.

    And following Qureshi, you couldn’t trust the reliability of availability information from a written application form anyways.

    So I would think that the best practice will likely be to leave availability inquiries to the interview stage (at which point the Qureshi approach would be much more difficult to justify), and to either make sure that your availability criteria are objective and justifiable, or figure out a way of framing the question to avoid the prospect of unknowingly discriminating..

    • Doorey Reply

      September 17, 2013 at 8:30 pm

      Dennis, thanks. I take the view that intent of the legislature was to keep job ads and job applications free of anything that would tend to discourage people from applying in the first place because of their gender, disability, religion, etc. The purpose is to encourage a face to face discussion of accommodation, which won’t occur if employers can just weed people at by including requirements in job ads or questions in application forms that will cause people not to apply at all. To me that should be the test for s. 23(1) and (2): Would the question or qualification tend to discourage an applicant from even applying because, due to their religion, disability, gender, ethnicity, etc, they’d assume they won’t get the job. If an employer can say ‘must be able to lift 50 pounds’ or “must be able to work Fridays and Saturdays” in an application form or job ad, then folks who can’t meet that standard due to sex, disability, or religion won’t even bother applying, and hence the statutory goal of encouraging a discussion about accommodation will never take place. I’ve always thought that is what Section 23 is intended to do, and nothing I have read in the case law has persuaded me I’m wrong. On the other hand, the decisions do not follow any obvious pattern, in my opinion.

      • Dennis Buchanan Reply

        September 19, 2013 at 9:16 pm

        Suppose that I had an assistant, who was my only employee, who asked for Tuesdays off because that was the only day that he or she couldn’t make other arrangements for child care, and I agreed. I then need to hire an employee for certain admin tasks on Tuesdays only. Your view is that I would need to make a generic part-time posting, and not until the interview stage would I be able to indicate that the position is only for Tuesdays?

        Seems like I’d be wasting a lot of my own time and a lot of time of applicants who already have Monday-to-Friday obligations, for no good reason.

        Especially given the lack of a BFOR exemption for job postings, the same kind of issues could easily arise with job descriptions. Every job duty has some disability which would prevent it from being done, which may or may not be facilitated by accommodation. Advertising for drivers would be prima facie discriminatory against people who are visually impaired, or epileptic, and possibly people with fused discs in their necks. A person who has lost the use of his or her right leg might also reasonably be deterred from applying for a position where driving is required, even though that particular disability might be reasonably accommodated.

        My view of the purpose of s.23 is that it’s a restriction on information-gathering by the employer, and less about any actual impact of the query on the candidate (in fact, many prohibited questions are perfectly appropriate small talk in a workplace outside of a recruitment context), for practical reasons relating to challenges in the burden of proof for substantive discrimination. It’s very difficult to make out a prima facie case of discrimination for an opaque hiring decision made on non-objective hiring criteria, as most are. Therefore, by making it illegal for an employer to target information about prohibited grounds, you make it harder for employers to engage in behind-the-scenes discrimination.

  3. Doorey Reply

    September 19, 2013 at 10:00 pm

    Dennis, isn’t asking if you can work Fridays “information-gathering” by an employer likely to disclose if an applicant is a 7th Day Adventist?

    • Dennis Buchanan Reply

      September 23, 2013 at 8:22 pm

      Not at all. (7th Day Adventists are mainly Saturday Sabbath observers, observing from Friday sunset to Saturday sunset, but that’s beside the point…) If I ask someone if they’re available to work the Friday evening shift, and they answer “No”, I would not therefore be able to conclude, or even reasonably infer, that the person is a Seventh Day Adventist.

      There are any number of reasons a person may be unavailable to work a given day of the week. Some are related to family status or religion, true, but others are totally irrelevant to the Code – other pre-existing commitments or preferences that they are not willing to abandon. A negative response to the question of “Are you available to work Saturdays”, simpliciter, will not give any indication as to whether the reason is that the person is a Seventh Day Adventist, is Jewish, has child care obligations that day, volunteers at a charity that day, plays in a recreational basketball league that day, takes Saturdays to recover from a Friday night hangover, or has a part-time job that requires them to work that day (nor whether or not the additional job is required because of family status, gambling addictions, or to save up for a down payment on a house).

      With “Are you available to work Saturdays”, it would only be inappropriate to exclude a candidate who says ‘no’ if I could reasonably accommodate the unavailability AND the *reason* they’re unavailable to work Saturdays relates to a prohibited ground. (Which I won’t necessarily know based on that inquiry alone. Hence, minefield.) If you can’t work Saturdays for a reason unrelated to a prohibited ground, though, you would (and should) have no recourse against me for refusing to hire you on that basis.

      • Doorey Reply

        September 23, 2013 at 9:56 pm

        Dennis, we can agree to disagree on this. It’s an interesting topic, and I think I will write a law journal paper on it when I find the time. I’m still not clear on what you think the prohibition on questions in a job ad or application form that ‘indirectly classify or indicate qualifications by a prohibited ground’ ads to the Code. What does it prohibit? Why is it there? It can’t just be dealing with an actual decision not to hire based on religion. That’s already covered off by s. 5 and s. 11. Section 23(1) and (2) deal with written inquiries in a recruitment exercise, not actual hiring decisions. We have to assume the words ‘indirectly’ in those sections add something new to the Code, otherwise we’d just be reading them out. As I understand your argument, you are saying that if the answer to the question on the job application form need not disclose information about a prohibited ground, then it is not a violation of s. 23(2). To me, that reads out the words ‘or indirectly’.

        I agree that the answer ‘no’ to a question, can you work Saturdays, on a job application form need not disclose religion. But it will have the effect of causing most people who cannot work Saturdays because of their religion to not even bother applying for the job. We agree that s. 5 and s. 11 of the statute would prohibit an employer from refusing to hire someone who can’t work Saturday because their religion, unless accommodation is not possible. However, we don’t even get to a discussion about accommodation if no one applies in the first place. Section 23(1) and (2) are intended to deal with that scenario, in my view. That is what s. 23 ads to the Code, that is not already caught by the clear language in s. 5 and 11. Section 23(1) and (2) aim to stop employers from avoiding the accommodation discussion required by s. 11 by weeding people out before that discussion, in the job ad or application form, simply by including questions that will cause folks not to bother applying. If all s. 23 does is prohibit an employer from asking, What is your religion? or “Does your religion prevent your from working Saturdays”, then we are reading out the words “or indirectly” in s. 23(1) and (2). Anyhow, appreciate your insights. Maybe the Tribunal will do us the favour of setting out a clear explanation of how s. 23(1) and (2) fit into the Code. So far, I have not seen a satisfying explanation. Best, David

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