Ontario Human Rights Commission Issues Statement on Employer Requests for Facebook Passwords

I took a strong position earlier this week that the Ontario Human Rights Code, and probably all or most other human rights legislation in Canada prohibits employers from asking for a job applicant’s Facebook password. That blog entry followed some media stories about employers in Canada and the U.S. asking for this information in job interviews.
As is evident from the thoughtful comments of some lawyers I received in response to the blog, my view that it is illegal for an employer to demand Facebook passwords is not universally shared, though everyone seems to agree that it is ‘wrong’ for an employer to ask for this and certainly would be illegal for an employer to rely on any information obtained on a facebook page related to prohibited grounds.
In response to the debate, the Ontario Human Rights Commission has issued a statement on its Facebook account advising employers to refrain from asking for Facebook passwords in job interviews.  Here is the text of the statement:

A story this week in the Toronto Star <http://goo.gl/H8kce> told of a candidate for a job with a police service who was asked, at an interview, to provide the password for his Facebook page.
The story provoked a discussion <http://goo.gl/RuAqP> on the blog of law professor David Doorey; is asking for such information contrary to Ontario’s Human Rights Code? <http://goo.gl/rFUJu>

What a prospective employer should and should not ask at an interview is addressed in the OHRC publication Human Rights at Work: <http://goo.gl/UOBkj>
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d) Make sure interview questions comply with the Code
When inappropriate questions relating to Code grounds are asked in an interview, an inference may be made that a decision not to hire was influenced by such questions. Employers could face a finding of discrimination even if there is no intention to discriminate. The fact that improper questions have been asked is sufficient to prove discrimination, even if the applicant is ultimately given the job.
Example: A hiring manager interviewing a female applicant starts off by casually discussing his family and asking if she has any children of her own. Throughout the interview, the applicant is distracted, wondering if her family status is going to be an issue for the employer. This may be a violation of the Code, even if this information is not taken into account and the applicant is offered the job.
Take care to make sure that interviews are only to get information about qualifications and job requirements needed for the hiring decision.
Section 23(2) prohibits employers from asking questions that directly or indirectly classify or indicate qualifications by a prohibited ground of discrimination.
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A Facebook profile could include direct or indirect information on any or all of the 15 prohibited grounds: race, colour, ancestry, creed (religion), place of origin, ethnic origin, citizenship, sex (including pregnancy, gender identity), sexual orientation, age, marital status, family status, disability and receipt of public assistance. This information could be available as text or inferred from pictures.
For this reason, the OHRC believes employers should not ask job applicants for access to information stored on social media or other online sites and that doing so could leave an employer open to a claim of discrimination under the Code.
Employers should note that the language of section 23(2) is clear:
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.
Job applicants should also be aware that information that they make available to the general public on-line may reveal details about themselves that could be used for discriminatory purposes. Prospective employers, and others (prospective landlords, educators, etc.) will also have access to on-line information. Applicants may wish to use discretion in what they post and consider restricting general access to certain types of information.

Note also that Facebook just issued a release saying the same thing as me:  that employers should not ask for Facebook passwords, and that people should never give this information to an employer.  Facebook’s privacy officer noted, according to the report, that “if an employer discovers that a job applicant is a member of a protected group, the employer may open itself up to claims of discrimination if it doesn’t hire that person.”
There you have it.  What I say, and what Facebook and the Ontario Human Rights Commission say, is not legally binding, and a human rights tribunal could rule that employers are free to dig into job applicant’s personal information by demanding Facebook passwords.  But I doubt that the Tribunal would say that.   More importably, employers, just be a decent employer and don’t ask for this information.