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Employers Can't Ask an Applicant's Age, and Volunteer Work is 'Employment" under Human Rights Code

by David Doorey December 5, 2012
written by David Doorey December 5, 2012

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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David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School’s Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).

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2 comments

Ken October 20, 2020 - 3:32 pm

I am approved to hire an employee under a grant program. One of the conditions is that the applicant is 30 or under. On some resumes, it’s easy to tell if they provide their high school graduation date but otherwise, it can be difficult to determine. I’ve asked further details about their education going back to high school to try and determine and that can be helpful but not always. Can I explain to the individual about the grant and have them decide to walk away or not?

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Elizabeth October 24, 2021 - 5:18 pm

I applied for a job at Pacific Blue Cross a few years ago and they had a question on the application that you had to check a box that said “I am under 40” or “I am 40 or over.”

I am currently 40 and i am worried about discrimination from employers due to age. The job i am applying for asked for the year I graduated high school. I didn’t give the year but i did comment that I graduated high school and have some post secondary education. But now they want me to submit documents for a criminal record check, that goes through a recruitment agency first, even though I haven’t been hired.

When i was in school in 2016 one of the employers who visited to talk to the school they don’t like hiring people over 40. And at the last company i worked for they said they like to hire young people (i look much younger than my age). But applying for jobs online now it seems like many are trying to get your age before hiring you.

I wouldn’t be able to prove they didn’t hire me due to age, so how do i avoid this discrimination? Can i report these companies?

I am in BC if that makes a difference.

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Asking a Job Applicant "Where are you from?" is Violation of Human Rights Code
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Time to Rethink How We Regulate Long Work Stoppages?

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