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.
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?