We play a game in my Employment Law course where we look at job application forms that students bring in and search for unlawful questions. In the past, we have considered Starbucks and Coach (Coach in particular was outrageous). In continuing on with this great tradition, one of my students handed me an application she picked up from Cara, that giant corporation that owns Swiss Chalet, Milestones, Montanas, Kelsey’s, Harveys, and others.
One question on their standard application form I hadn’t seen before:
“Do you have any relatives who are employed by Cara?”
Is that lawful? Can an employer grant preference to relatives of existing employees, or alternatively, exclude them from jobs because of their relatives? Part of the answer lies in Section 24(1)(d) of the Ontario Human Rights Code. That section provides that it is not a violation of the Code for an employer to give preference or refuse to employ a person who is a ‘spouse, parent, or child’ of the employer or an existing employee. This permits a form of limited nepotism. But note that it covers only a small subset of relatives (spouse, parent, child). Can an employer refuse to employ someone because they already employ that person’s cousin or aunt or grand-parent, for example? Clearly those people are not caught by Section 24(1)(d).
Therefore, do you think it would be a violation of Section 5 of the Code, which bans discrimination in employment based on a variety of grounds, including ‘family status’, to weed people out of the hiring process on the basis of their relationship to existing employees (other than spouse, child, or parent)? The answer is probably ‘no’, because ‘family status’ is very narrowly defined as ‘the status of being in a parent and child relationship’ (see section 10). Can you identify any other way that the Code would ban an employer from basing its hiring decisions on the presence of existing employees who are relatives of the job applicant? What about the fact that your employer may know the ethnic origin or religion of your relatives who are already employees? Would that effect whether an employer can ask questions about ‘relatives’?
Are you able to lift 50 pounds and understand that there may be continuous standing/movement on your feet in this role? Yes or No
Uh-Oh. This is almost certainly a violation of Section 23 of the Code, isn’t it? That section says (in essence) that an employer can not ask questions in the recruitment process that indicate qualifications in ways that indirect discriminate. In other words, employers can’t ask people if they can lift 50 pounds, because it would be illegal to refuse employment to a person who can’t simply on that basis. Rather, even if lifting 50 pounds or standing up for long periods of time is a job requirement, the employer has an obligation to accommodate an employee ‘to the point of undue hardship’ so as to enable that person to do the job. If employers can just refuse to hire people who can’t lift 50 pounds or stand all day, they could easily avoid the duty to accommodate, by hiring only people who meet their ideal of the perfect employee.
You may be required to wear a uniform or follow a dress code. Are you willing?
Hmmm. Dress codes can easily run afoul of human rights legislation. Think about a rule that prohibits head gear, or that requires women wear short skirts, for example. Both of those dress codes have been ruled unlawful by Canadian human rights tribunals. So can an employer ask applicants whether they are prepared to wear a dress code or abide by personal appearance rules that, for example, might violate the applicant’s religious freedom? I think this question is highly dubious from a legal perspective, especially when the uniform is well-known and the applicant knows that it will clash with some protected right. What do you think human rights experts?
Keep the application forms coming. Maybe if we do enough of these, the HR Departments might actually start considering human rights issues when they draft their application forms.
